Page:United States Statutes at Large Volume 47 Part 1.djvu/1034

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1010 Sta y of proceedings . Service . Extent of review un- der . Perfection of return of . Hearing and Judg- ment . Copy of judgment to inferior court . Judgment-rolls . Writ of mandate . Mandamus denomi- nated as . Purpose for which issued . When to issue . Alternative or empto ry . Effect of notice . per . 72d CONGR ESS . SESS. II. CH. 12 7. FE BRUARY 27, 1933 . cou rt, at a specified t ime and place, a transcript of the record and proce eding s (de scrib ing or ref errin g to them with conve nient cer- tainty), that the same may be reviewed by the court ; and requiring the pa rty, in the mea ntime , to desis t fro m fur ther proce eding s in the matter to be reviewed. SEC . 57 4. PROCEEDINGS IN INFERIOR COURT MAY BE STAYED, OR NOT: If a stay of proceedings be not intended, the words requiring the stay mu st be omitted from the writ ; th ese w ords may be ins erted or omitted, in the sound discretion of the court, but if omitted, the power of the in ferio r cou rt or offi cer is not susp ended or the proce eding s sta yed . SEC . 575 . SERVICE OF THE WR IT .-The writ must be served in the same manner as a summons in civil action, except when otherwise expres sly directed by the court . SEC . 576 . THE REVIEW UNDER THE WRIT, EX TENT oF .-T he review upo n this writ can not be extended further tha n to determine wh eth er the inferior tribunal, board, or officer has regularly pursued the authority of suc h tribunal, board, or officer. SEC . 577 . A DE FECTI VE RE TURN OF THE WR IT MAY BE PERFE CTED ; HEARING AND JUDGMENT :If the return of the writ be defective, the court may order a further return to be made . When a full return has been made, the court must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, eithe r aff irmin g or annul ling, or m odify ing the pr oceed ings below . SE C. 578 . COPY OF THE JUDGMENT MUST BE SEN T TO THE INFERIOR TRIBUN AL .-A copy of the judgment, signed by the clerk, must be transmitted to the inferior tribunal, board, or officer having the custody of the record or proceeding certified up. SEC . 579 . JUDGMENT-ROLLS .-A copy of the judgment, signed by the clerk, entered upon or attached to the writ and return, constitute the judgment-roll . WRIT OF MANDATE SEC . 580 . MANDATE DEFINED .-The wri t of mandamus may be denominated the writ of mandate . SEC. 581. WHEN ISSU ED BY DIST RICT COURT .- It may be issued by the district court, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station

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to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person . SEC . 58 2. WRIT, RIT, WHEN AND UPON WHAT TO I SSUE .-The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law . It mu st be issued up on the verif ied p etitio n of the p arty benef icial ly in teres ted . SEC . 583 . WRIT MAY BE EITHER ALTERNATIVE OR PEREMPTORY ; SUB- STANCE .-The writ may be either alternative or peremptory . The alter nativ e wri t mus t com mand the p arty to wh om it is d irect ed immediately after the receipt of the writ, or at some other specified time, to do the act requi red to be perfo rmed, or to sho w cau se before the court at a specified time and place why he has not done so. The pe rempt ory w rit m ust be in a sim ilar form, exce pt th at the w ords requi ring the p arty to show c ause why he has not done as commanded must be omitted and a return-day inserted . SEC. 584. IF THE APPLICATION BE WIT HO UT NO TIC E, THE ALTERNATIVE WR IT MAY ISSUE, OTHERWISE, THE PEREMPTORY ; NOTICE AND DEFAULT .- When the application to the court is made without notice to the adverse party, and the writ is allowed, the alternative must be first