State ex rel. Journee v. Board of Com'rs

Citations

• 115 La. 684
• 39 So. 842
• 1905 La. LEXIS 720

Syllabus

<p>1. Mandamus — Failure to Answer.</p> <p>The question to be passed upon was not ministerial, but judicial.</p> <p>In proceeding by mandamus, if respondent does not make a return or file an answer, the court cannot, on this failure to make return or answer, be required to make the mandamus peremptory.</p> <p>2. Same — Insufficiency oe Answer.</p> <p>“If the answer is considered insufficient, then a peremptory mandate shall issue.” Code Prac. art. 843.</p> <p>3. Same — Judicial Questions — Discretion oe Court.</p> <p>Where the question is judicial, to the judge of the court of the first instance is left some discretion to determine whether from averments and proof the writ should be made peremptory.</p> <p>4. Same — Controlling Judicial Action.</p> <p>In view of this discretion, no writ of mandamus will go to him to compel him to make the writ peremptory.</p> <p>5. Same — Failure to Answer — Procedure.</p> <p>Case to be fixed for trial, if the respondent in the district court declines to answer, the remedy is to hear and try the issues presented without answer, on such proof as may be offered and admitted.</p> <p>(Syllabus by the Court.)</p>