US RULES OF CIVIL PROCEDURE                                             RE MANDAMUS


34.150 Writ of mandamus denominated writ of mandate. The writ of mandamus may be denominated the writ of mandate.
[1911 CPA 752; RL 5694; NCL 9241]

34.160 Writ may be issued by supreme court and district courts; when writ may issue. The writ may be issued by the supreme court, a district court or a judge of the district court, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person. When issued by a district court or a judge of the district court it shall be made returnable before the district court.
[1911 CPA 753; RL 5695; NCL 9242]

34.170 Writ to issue when no plain, speedy and adequate remedy in law. This writ shall be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It shall be issued upon affidavit, on the application of the party beneficially interested.
[1911 CPA 754; RL 5696; NCL 9243]

34.180 Court may order return and hearing at any time. The writ of mandamus may, in the discretion of the court or judge issuing the writ, be made returnable and a hearing thereon be had at any time.
[Part 1911 CPA 769; RL 5711; NCL 9258]

34.190 Writ must be either alternative or peremptory; substance of writ.
1. The writ shall be either alternative or peremptory.
2. The alternative writ shall state generally the allegation against the party to whom it is directed, and command such party, immediately after the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court, at a specified time and place, why he has not done so.
3. The peremptory writ shall be in a form similar to the alternative writ, except that the words requiring the party to show cause why he has not done as commanded shall be omitted, and a return day shall be inserted.
[1911 CPA 755; RL 5697; NCL 9244]

34.200 Issuance of alternative or peremptory writ; notice of application; case heard by court whether adverse party appears or not. When the application to the court or district judge is made without notice to the adverse party, and the writ is allowed, the alternative shall be first issued; but if the application be upon due notice, and the writ is allowed, the peremptory may be issued in the first instance. The notice of the application, when given, shall be at least 10 days. The writ shall not be granted by default. The case shall be heard by the court, whether the adverse party appear or not.
[1911 CPA 756; RL 5698; NCL 9245]

34.210 Adverse party may show cause by answer under oath. On the return day of the alternative, or the day on which the application of the writ is noticed, or such further day as the court or district judge issuing the writ may allow, the party on whom the writ or notice shall have been served may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action.
[1911 CPA 757; RL 5699; NCL 9246]

34.220 If answer raises essential question of fact, court may order jury trial. If an answer is made, which raises a question as to matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for a writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had and the verdict certified to the court. The question to be tried shall be distinctly stated in the order for trial, and the county shall be designated in which the same shall be had. The order may also direct the jury to assess any damages which the applicant may have sustained, in case they find for him.
[1911 CPA 758; RL 5700; NCL 9247]

34.230 Applicant may object to sufficiency of answer or countervail it by proof. On the trial, the applicant shall not be precluded by the answer from any valid objection to its sufficiency, and may countervail it by proof either in direct denial or by way of avoidance.
[1911 CPA 759; RL 5701; NCL 9248]