People ex rel.Damron v. McCormick

Citations

• 106 Ill. 184
• 1883 Ill. LEXIS 158

Syllabus

<p>1. Practice—in mandamus—traversing facts after demurrer to answer ■—discretion. Where a demurrer to an answer to a petition for a mandamus has been overruled, this court, in its discretion, may or may not allow an issue of fact to be made. It will be allowed when the ends of justice seem to demand it, otherwise it will be denied.</p> <p>2. Pleading—carrying demurrer back—in mandamus proceedings. The familiar rule that a demurrer will be carried back and made to reach the first defect in the pleading of either party, has its application in proceedings by mandamus, as well as to other pleadings, either at law or in equity.</p> <p>3. Mandamus—to compel inferior tribunal to do an act within its discretion. Where an inferior tribunal is invested by law with authority to decide any matter submitted to it, it may be compelled, by mandamus, to act; but how it shall decide a given case is always a matter for its judgment, and with the exercise of which no other tribunal or court may interfere.</p> <p>4. Same—to compel county board to require suit to be instituted against county clerk. A petition for a mandamus sought to compel a county board to require a county clerk, whose term of office had expired, to forthwith pay to the county treasurer certain moneys alleged to be in his hands belonging to the county, and in default thereof to require the relator, as State’s attorney, to commence suit on the official bond of the clerk for the recovery of such moneys. It appeared that the county board had once acted on the matter and refused to make such order. It was held, that the petition failed to show a case that would justify the granting of the writ, such matters being purely within the discretion of the county board, and a demurrer to the answer was sustained to the petition, and the same dismissed.</p>