Mayer v. Wilkinson

• Citation: 73 N.W. 214,52 Neb. 764
• Parties: MAYER ET AL. v. WILKINSON ET AL.
• Decision Date: 09 December 1897
• Court: Nebraska Supreme Court

52 Neb. 764

73 N.W. 214

MAYER ET AL.

v.WILKINSON ET AL.

Supreme Court of Nebraska.

Dec. 9, 1897.

Syllabus by the Court.

1. In an application for a writ of mandamus, where issues of fact are presented for trial, a judge of the district court cannot allow a peremptory writ at chambers in vacation. The trial of such issues must be at a session of court in the home forum, or place of the litigation.

2. The trial of issues of fact on an application for a mandamus is not one in which a jury may be demanded as a matter of right.

Error to district court, Nemaha county; Bush, Judge.

Application by the state, on the relation of R. G. Wilkinson and others, for a writ of mandamus compelling the mayor and city council of Auburn to revoke a license issued to John W. Mayer, Jr. From the granting of the writ, respondents bring error. Reversed.G. W. Cornell and W. H. Kelligar, for plaintiffs in error.

G. B. Beveridge, for defendants in error.

HARRISON, J.

It appears herein that on April 19, 1894, John W. Mayer, Jr., filed with the city clerk of the city of Auburn, this state, an application for license to sell intoxicating liquors in said city. May 19, 1894, a remonstrance against the granting of the license was filed, and June 5, 1894, the matter was heard; and, as results of the hearing, the remonstrance was overruled, and an order made by which the license was granted. The remonstrators gave due notice of appeal, and on the 16th of June filed a transcript of the proceedings of the city council at the hearing on the remonstrance, in the district court, and perfected an appeal. On the same day (June 16th), John W. Mayer, Jr., paid to the proper officer of the city the license fee, and received his license. On the same day the mayor and council were notified of the perfection of the appeal, and a demand was made of them to revoke or recall the license pending the disposition of the appeal. On July 2, 1894, the city council held a session, at which the demand for the recall of the license was considered and denied. On July 6, 1894, this action was instituted in the district court of Nemaha county; the relief asked being that a writ of mandamus issue to the city council of Auburn, commanding it to revoke or recall the license issued to John W. Mayer, Jr. On the succeeding day, at chambers, the judge of the district court allowed an alternative writ, which was issued, and on the 17th of the same month the respondents filed returns or answers to the writ. A hearing was had before the judge at chambers, resulting in a peremptory writ being ordered and issued. The respondents have prosecuted error proceedings to this court.

At the time of the hearing the respondents challenged the jurisdiction of the judge to hear or try the cause at chambers, on the ground that issues of fact were presented by the pleadings, and were not triable by a judge at chambers, and in a county of the judicial district other than the one in which the cause of action arose and suit was instituted. This was overruled, and the ruling is the subject-matter of one of the assignments of error herein. There were allegations of facts, which, for their existence, depended on proofs to be introduced on the hearing or trial. This being true, did the judge err in hearing the cause at chambers? In section 39, c. 19, Comp. St., entitled “Courts,” it is stated that “a judge of the district court may sit at chambers anywhere within his district for the purpose of * * * hearing an application for mandamus or habeas corpus.” In the case of State v. Pierce Co., 10 Neb. 476, 6 N. W. 763, this section was under consideration, and it was said: “Judges of the district courts have no jurisdiction in vacation to award writs of mandamus.” In 1881 what now appears as section 57 of the same chapter was passed by the legislature, in which it is provided that a judge of the district court may act at...