12 Colo. App. 40 | Colo. Ct. App. | 1898
Thomas W. Vincent presented his petition for a writ of mandamus against the board of county commissioners of Hinsdale county. An alternative writ was issued, which seems to be defective in not containing any of the allegations of the petition. No point, however, was made upon the writ, and we shall pass it without comment. The petition averred the allowance by the board, in favor of the plaintiff, of claims to the amount of $107.70, a demand in due form, upon the board, to issue its warrant in payment of the sum allowed, and the refusal of the board so to do. The prayer was for an order requiring the respondent either to issue immediately its warrant upon the treasurer for the amount, or; in default of funds against which to draw, to provide for the payment of the sum allowed, by the levy of a tax. A demurrer to the petition was sustained, and the suit dismissed. The case is here on writ of error.
Properly the alternative writ is the first ■ pleading in the case, and the return to the writ performs the office of an answer to a complaint. Civil Code, sec. 311. However, as the command of the writ is to perform the act required in the petition, or show a cause why it should not be performed, if the facts stated in the writ are insufficient to entitle the plaintiff to the relief sought, the return may be in the nature of a demurrer. People v. Salomon, 46 Ill. 333. Here the petition seems to have been regarded as a complaint, and the demurrer was interposed to it. Both parties acquiesced in this method of testing the plaintiff’s statement of his cause of action, and we shall adopt their view of the subject, and confine ourselves to the petition.
Mandamus lies to compel the performance of some specific
The judgment will be affirmed.
Affirmed.