Hardy v. Purington

Citations

• 6 S.D. 382
• 61 N.W. 158
• 1894 S.D. LEXIS 159

Syllabus

<p>1. The final determination of the court in mandamus proceedings, by which a peremptory writ is adjudged aud awarded upon the affidavit'of plaintiff and the answer of the defendant, is a judgment.</p> <p>2. In an appeal from a judgment so rendered, there'having been no alter- . native writ the record in this co.urt is the affidavit of plaintiff-, the answer of defendant, and the judgment of the court certified, as required by section 5217, Comp. Laws, for the certification of a judgment roll.</p> <p>3. An answer which denies “each and all the allegations' in the affidavit contained, except such as are hereinafter admitted or qualified,” though not a form of pleading to be encouraged, has grown into such frequent use that it would be unwise and unfair to litigants and attorneys for this court to hold, without premonition, that -such an answer, unassailed by motion or otherwise, constitutes no denial.</p> <p>4. If such an answer leave the plaintiff in doubt as to what allegations of his complaint are intended to be denied and what admitted, the answer is subject to a motion to make more definite and certain.</p> <p>5. Section 5 of chapter 2 of an act to establish a uniform' system of education, being chapter 56, laws 1891, forbids the employment of any teacher unless holding a lawful certificate, and makes an attempted contract therefor void.</p> <p>6. In a proceeding for a peremptory mandamus to compel a school treasurer to pay an order for services as teacher, an answer of such treasurer, denying that such teacher held such certificate when the alleged, contract was made, or when the services were claimed to have -been rendered, . presents an issue upon a material fact. ■</p> <p>7. With the pleadings so presenting this issue, it is error in the trial court to enter judgment upon the pleadings alone, awarding a peremptory mandamus requiring the treasurer to pay such order.</p> <p>(Syllabus by the Court.</p>