presented was one of law or fact, in any other proceeding, whether it be legal or equitable or a proceeding by mandamus, and is also conclusive as to all matters directly involved and determined therein, until such decision has been reversed or set aside. So a mandamus against a county or its legal representatives is conclusive against a bill in equity subsequently filed against them, as to all matters which could have been set up in the mandamus proceeding, though the bill is filed by other inhabitants of the county. When a court had jurisdiction of the parties and the subject-matter in a mandamus proceeding, its judgment therein cannot be attacked collaterally."

1 State v. Ottinger, 43 Ohio St. 457; State v. Trammel (Mo., Nov. 9, 1891), 17 S. W. Rep. 502; State v. Hard, 25 Minn. 460; Tucker v. Iredell (Just.), 1 Jones, 451; Block v. Com'rs, 99 U. S. 686; Louis v. Brown Township, 109 U. S. 162;

Washington L. Co. v. Kansas P. R.
R., 5 Dill. 489. Contra, Burland v.
N. W. M. B. Assoc., 47 Mich. 424.
2 Sauls v. Freeman, 24 Fla. 209.

State v. Trammel (Mo., Nov. 9. 1891), 17 S. W. Rep. 502.

CHAPTER 21.

FORMS IN MANDAMUS PROCEEDINGS.

§ 316. Entitling the petition.

317. Form of the body of the petition.

318. Verification of the petition.

319. Form of the alternative writ.

320. Requirements of the return.

321. Form of final judgment.

822. Illustrations of the necessary pleadings.

§ 316. Entitling the petition. The courts have been disposed to ignore forms in the pleadings in mandamus proceedings, only requiring that the essential facts necessary should in some way be stated, no matter how informally. Owing to this very informality it seems desirable to give some examples of forms which have met the approval of the courts.

The second form is generally used. The fourth form is proper in those states where it has been ruled that under

their laws requiring all suits to be brought in the name of the real party in interest, the name of the state cannot be used by a private relator. Of course when the prosecuting officer institutes the proceedings, the name of the state should be used. The third form is the one suggested by the writer.2

§ 317. Form of the body of the petition. The body of the petition should read:

The petition of A. B. respectfully showeth that [here all the facts showing the duty which was imposed upon the respondent, the rights of the relator in the matter, the demand of performance and the respondent's refusal to perform, or the facts dispensing with a demand and refusal should be stated].

Your petitioner therefore prays that a peremptory mandamus may issue to the said C. D. commanding him [here state the duty whose performance is requested].3

The petition should be signed by the petitioner or by his counsel.

§ 318. Verification of the petition. The petition must be verified. Such affidavit may read:

A. B., the petitioner above named, being duly sworn, on his said oath deposes and says that the several matters and things in the foregoing petition stated are true in substance and in matter of fact, to the best of his knowledge, information and belief.4

319. Form of the alternative writ.-If the alternative writ is granted, being an order of court, it will be entitled:

1. State of

to

[the respondent], Greeting.

Sometimes the name of the case is put above the order, when the writ will be entitled as follows:

The body of the writ will read:

Whereas, it hath been related to the court [court in which the matter is pending], by A. B. [the relator],1 that [here insert the allegations of the petition prior to the mandatory clause]: Now, therefore, being willing that full and speedy justice should be done in the premises, we do command you that [here insert the mandatory clause of the petition], or that you show cause to this court, at its session at o'clock on the

day of, A. D. 18—, at —, why you have not done so; and have you then and there this writ, with your return that you have done as you are are hereby commanded.

The writ should be attested in the manner usual with orders emanating from that court.

Some courts have adopted the following form, which the writer recommends as dispensing with all trouble in preparing the alternative writ, viz.:

The State of

to A. B. [the respondent], Greeting:

Whereas, on the the day of

a

day of —, A. D. 18—, there was filed, and on A. D. 18-, presented to our court of petition praying for a writ of mandamus, which petition is in words and figures following, to wit:

[Then insert the petition in full, including the caption and the verification.]

1 In the writ it is not the practice to state the facts absolutely, though it has been done. Com. v. Pittsburgh (Councils), 34 Pa. St. 496. The ordinary statement is that it hath been represented, related or suggested to the court. People v.

Pearson, 2 Scam. 189; Drew v. McLin, 16 Fla. 17; State v. Lawrence, 3 Kan. 95; State v. Zanesville, etc. Co., 16 Ohio St. 308; Hawkins v. More, 3 Ark. 345; King v. Goodrich, 3 Smith, 388; State v. Goll, 32 N. J. L. 285.

And whereas, upon consideration, it was ordered that an alternative writ of mandamus should issue: These are therefore to command you [here insert the prayer of the mandatory clause of the petition], or to appear before this court on the day of - A. D. 18-, at o'clock A. M., then and there to show cause, if any you have, why you have not so done.

The writ should then be attested in the mode adopted in each court for attesting its orders.

$320. Requirements of the return. The return should be entitled by the name of the cause, viz.:

The State of

at the relation of A. B. [the relator],

VS.

In the

Court.

C. D. [the respondent, giving official title]. The return differs in no respect from the answers in any civil suit, except as to the particularity of its allegations, which has been explained before. All motions made by the respondent or by the relator (at least after the court has granted the alternative writ) must be entitled of the cause. The return should be signed by the respondent or by his counsel.

§ 321. Form of final judgment.- If upon the final hearing the peremptory writ is refused, the judgment is that the respondents go without day and recover of petitioner their costs. If the court make any different order as to costs, the judgment will be void accordingly. If the peremptory writ issues, it issues as an order of the court, commanding the performance of the duties ordered in the alternative writ, but omitting the order to show cause, and directing the respondent, at a period named, to make a return to the court, showing his obedience to the writ. § 322. Illustrations of the necessary pleadings. To the above forms it is deemed expedient to add the pleadings actually filed and approved by the courts in a few instances. It should be premised, however, that the omission of the title of the cause, or of the affidavit of the petition, must not be considered to be evidence that none such existed, since where no issues have been made thereon, the courts find it unnecessary to notice them.

Ante, § 292.