People ex rel. Stansbury v. Mayor of Danville

Citations

• 147 Ill. 127
• 35 N.E. 154

Syllabus

<p>1. Mandamus—in the Supreme Court—practice. Where the relator, in a proceeding by mandamus in this court, fails to reply to the answer of the respondent, and fails to file any further pleading or to adopt any mode for a judicial determination of the facts, as to which the parties fail to agree, and they both submit the cause on their printed briefs, this court may, perhaps, properly dismiss the petition for want of prosecution, or set aside the submission and order the parties to proceed to the formation¿md trial of the issues of fact tendered by the answer.</p> <p>2. Where an original suit for mandamus is submitted on briefs, if this court retains the case without any formal issues of law or fact, the relator can have no benefit of any.facts alleged in the petition which are disputed by the answer. Facts alleged by a plaintiff and denied by the defendant, unless proved, can never be the basis of a recovery. In such case, the respondent can not avail himself of any, affirmative facts alleged in the answer, if he fails to obtain any rule on the relator to reply, or to move for judgment for want of a replication.</p> <p>3. By submitting a case on printed briefs without any formal issues of law or fact, or taking steps for a rule on the relator to reply to the answer in a proceeding by mandamus, or to insist on a default, the respondent, will waive a formal issue, and he will not be any more entitled to the benefit of the affirmative facts alleged by him, than if they had .been formally traversed. In such case, this court will treat the answer as a demurrer to the petition.</p> <p>4. Municipal corporations—re-districting cities into wards. Section 4, article 4, chapter 24, relating to cities and villages, vests in city councils a discretion to re-district their cities into an appropriate number of wards, whenever, in their opinion, there is proper occasion for so doing. They are authorized, not once for all, but “from time to time,” to divide their cities into the nu