People ex rel. Rinard v. Town of Mount Morris

Citations

• 145 Ill. 427
• 34 N.E. 144

Syllabus

<p>1. Mandamus—essentials of petition. It is a familiar rule of universal application to a proceeding by mandamus, that the petition must set forth distinctly all the material facts on which the relator relies, so that the same may be traversed or, admitted. It must set forth a clear right on the part of the relator to have the act performed, and set forth every material fact, showing it is the duty of the persons sought to be coerced, to do the act. The sufficiency of the petition depends upon its averments, and not upon affidavits filed in its support.</p> <p>2. Same—to compel town auditors to allow a claim. A petition for a mandamus to compel the board of town auditors to audit and allow the relator’s claim against a town, which fails to show the presentation of the claim to such board of auditors, or their refusal to audit the same, is defective in substance and insufficient.</p> <p>3. Same—defects in petition—how taken advantage of. Under the former practice, in proceedings for mandamus, the defendant’s return to the alternative writ corresponded to the answer to the petition under the present practice. Under the present statute the petition takes the place of the alternative writ, and defects therein are taken advantage of in the same manner as defects in the alternative writ were formerly reached.</p> <p>4. Substantial defects in a petition for mandamus may be taken advantage of at any time before granting the peremptory writ. Where under the former practice the return to the alternative writ controverted no facts alleged in the writ, the return was held to have the effect of a demurrer only.</p> <p>5. Same—answer treated as a demurrer. Where there is no issue of fact made by the pleadings, upon which the determination of the right of the relators to the peremptory writ depends, the answer will be treated as a demurrer to the petition, and the right to the writ will depend upon the sufficiency of the petition on its face.</p> <p>6. Same—petition in the form o