Edgar B. (Edgar Benton) Kinkead.

The law of pleading : in civil actions and defenses under the code : also practice in appeal and error : with numerous forms and precedents (with special reference to the Ohio code) online

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THE



LAW OF PLEADING



IN



CIVIL ACTIONS AND DEFENSES
UNDER THE CODE



ALSO PRACTICE IN



APPEAL AND ERROE



WITH



NUMEROUS FORMS AND PRECEDENTS

(WITH SPECIAL REFERENCE TO THE OHIO CODE)



BY

EDGAR B. KINKEAD

07 THE COLUUBUS, OHIO, BAB

W,S.ThuTr'-



VOLUME II



CINCINNATI
W. H. ANDERSON AND COMPANY

1895



/






Copyright, 1894,

BY

W. H. ANDERSON AND COMPANY.






SYNOPSIS OF CONTENTS.



VOLUME 11.

Sectiona,

Ch. 58, Mandamus 790-814

59. Master and Servant — Relating to Matters

Other Than Negligence — Contracts of Serv-
ice 815-823

60. Mistake 823-825

61. Money Had and Received 826-835

62. Municipal Corporations 836-877

63. Negligence Causing Death 878-895

64. Negligence of Master Causing Death of or In-

jury to Servant 896-913

65. Negligence Causing Personal Injury, Includinq

A Discussion of General Questions of Negli-
gence Relating to Various Relations of Par-
ties 914-934

66. Negligence Causing Injury to Property . , 935-941

67. Nuisance 942-953

68. Partition 953-966

69. Partnership 967-977

70. Principal and Surety 978-989

71. Private Corporations 990-1015

72. Proceedings in Aid of Execution .... 1016-1021

73. Quo Warranto 1022-1038

74. Real Actions, Including Actions to Quiet Title,

Recovery of Possession, and Other Actions

Relating to Real Estate 1039-1060

75. Receivers 1061-1077

76. Replevin 1078-1093

77. Reformation, Rescission and Cancellation. . 1094-1106

78. Revivor op Actions and Judgments . . . 1107-1112

79. Sales 1113-1122

80. Seduction 1123-1132

81. Specific Performance 1183-1145

82. Statute of Limitations 1140-1150

83. Stock and Stockholders lloi-iifii

84. Street Railways 1162-1167

85. Subscription 1168-1174

86. Taxes 1175-1180



IV SYNOPSIS OF C0XTEM3.

Sections.

Ch. 87. Trespass 1181-1189

8& Trusts 1190-1 I9l

89. Warehousemen 1192-1194

90. Warra>-ty 119.J-1200

91. Waste 1201-1206

92. Wins 1207-1216

93. Relief After Judgme>t 1217-1219

94. Appeal 1220-1234

95. Proceedings in Error in Civil Cases — EirBRACiNa

THE Practice in Error in the Supreme, Cir-
cuit AND Common Pleas Courts .... 1235-1295



LAW OF PLEADING.



CHAPTER 58.



MANDAMUS.



Sec. 790. Definition of the writ

791. There must be no adequate

remedy at law.
793. Scope of the writ

793. It will not control discre-

tion.

794. Mandamus to state officials.

795. Mandamu to judges and

courts.

796. Mandamus to county offi-

cials.

797. Mandamus to municipal

officers.

798. Mandamus to township offi-

cers.

799. Maadamus to private cor-

porations.

800. Application for the writ or

petition.

801. Petition by state auditor to

compel county auditor to
correct tax duplicate.



Sec. 802.



803.

804.

805.

806.
807.

808.
809.
810.
811.
812.
813.
814



Petition by school exam-
iner to compel board of
education to fix and pay
his compensation.

Petition to gain possession
of books and papers of a
public office.

Petition to compel railroad
to run cars.

Petition to compel approval
of officer's bond.

Motion for alternative writ

Motion and notice for al-
ternative writ

Alternative writ

Form of alternative writ

By what court it may issue.

Tlie return or answer.

Demurrer to petition.

Demurrer to answer.

Peremptory'' writ



Sec. 7t)0. Defliiition of the writ.— Mandamus is a writ
issued in the name of the state to an inferior tribunal, a cor-
poration, board or person, commanding the performance of
an act which the law specially enjoins as a duty resulting
from an office, trust or station. ^ While the civil action under
the code embraces all such judicial proceedings as were pre-
viously denominated actions at law or suits in equity, it does
not include proceedings in mandamus.- Under recent decis-
ions it is nothing more than an action between the party on

1 0. Code, sec. 6741. See State ex rel. v. Bowersock, 1 0. G

2Chinn v. Trustees, 32 O, S. 236, C. 127.



762 MANDAMUS. [§§ 791, 792.

whose relation it is brought, and the defendant, and is an
action at law, the state being merely a nominal party.^
Sec. 791. There must be no adequate remedy at law. —

The origin of this writ was to remedy many wrongs for which
the law furnished no adequate redress, not to interfere with
hut to assist in the administration of justice ; consequently it
is a rule that the writ will issue only when the law provides
no specific remedy, but in justice and good government there
ought to beone.2 It must not be issued where there is a plain
and adequate remedy in the ordinary course of law; and
it may issue on the information of the party beneficially in-
terested.'

Sec. 792. Scope of the writ, — The duties sought to be en-
forced need not necessarily be specifically stated by law, but
they may sometimes arise by implication. It extends to those
who have placed themselves in such a position that the law
will impose upon them duties in the interest of the public.
It will not issue to enforce private contracts or obligations
arising merely upon contract, involving no trust,* but is con-
fined to civil rights, and the proceedings should be the same as
in civil actions. Great caution should be exercised by those
resorting to this remedy in determining the exact measure of
their rights. There is, however, a tendency to escape the ex-
treme severity of the rule that if the party claims more than
he can maintain upon trial he will be denied relief, or, if he
claims less than his rights, he cannot recover that not claimed.
To escape this perilous rule, courts hold the difference between
the two writs as immaterial, or allow the alternative writ to
be amended.' The writ will issue, therefore, to compel the
performance of a number of acts, or such distinct acts or parts
of acts to which it is shown that the relator is entitled, where
there is not such mutual dependence between the several acts

1 State ex rel. v. Farmer, 7 O. C. C. < State v. Turnpike Road Co., 16
430. O. S. 308 (1865).

2 In re Turner. 5 O. 542 (1832); ^State v. Crites, 48 O. S. 174 (1891);
Freon v. Carriage Co., 42 O. S. 80 State v. Board of Aldermen, 1 S. C.
(1884). 30; State t. Weld, 39 Minn. 426:

3 0. Code, sec. 6744; Freon v. Car- State v. Baggott. 96 Mo. 63: Dillon,
riage Co., 42 O. a 30; State v. Mei- Mun, Corp., sec. 879: Johnes v. Audi-
ley, 22 O. S. 534; State v. Stewart, 6 tor of State, 4 O. S. 493; Fornoff v.
W. KB. 188-9. Nash, 23 O. S. 335.



§ 792.] MANDAMUS. 763

or parts of acts that tbey cannot be separated or divided.'
The writ may in the discretion of the court be refused when
the relator has slept upon his rights an unreasonable length
of time.'' Nor will it issue to compel a person to do some-
thing from which he is prohibited by a subsisting decree of
injunction.'

Where a public oflBcer is called upon to perform a plain and
specific duty required by law, ministerial in its nature, calling
for the exercise of no discretion or official judgment, he may
be compelled, upon his refusal, to perform the same in the ab-
sence of any other means of relief.* This right depends upon
the legal duty, which must be clear, and its performance will
not be excused by any doubts concerning his duty.* It will
lie in all cases where the relator has a clear legal right to the
performance of some official and corporate act by a public
officer or corporation, and there is no other specific adequate
remedy.* A plain dereliction of duty must be established.'
The writ cannot be adopted to try the title to an office, and
is never issued, when a person is in office by color of right, to
admit another thereto. The proper remedy in such cases is
an information in the nature of quo warranto?

Although the question of strict title cannot be determined
in mandamus, yet sufficient investigation may be made in a
case where it is sought to compel the approval of a bond, to
ascertain whether a certificate of appointment held by the re-
lator \^ prima facie evidence of title ;^ and it has been resorted

1 State ex rel v. Crites, siipra. State v. Dunn, 12 Am. Dea 25 ; State

2Chinn v. Trustees, 32 O. S. 236; ex rel. v. Sullivan, 83 Wis. 416; & C, 53

State ex reL v. Commissioners, 18 N. W. Rep. 677 ; State ex reL v. Plam-

O. S. 386. back, 54 N. W. Rep. 667 (Neb., 1893);

3 Railroad Co. v. Commissioners, 7 People v. Goetting, 30 N. E. Rep. 968

O. S. 278. (N.Y.,1892). Where a pn'ma/ac/e title

* State ex rel. v. Moore, 42 O. S. 103. to a public office is shown, manda-

6 State ex rel. v. Auditor, 48 O. S. mus will lie to obtain possession of the

311, books of the office, but not to try

6 Railroad Co. v. Commissioners, 1 title. Ewing v. Turner, 35 Pac. Rep.
O. S. 78. 951 (Okla., 1894).

7 Ex parte Black, 1 O. S. 30 ; Moses » State ex rel. v. Plambeck, 54 N.
on Mandamus, 124; State ex rel. v. W. Rep. 667 (Neb., 1893). See State
Commissioners, 20 O. S. 430. ex rel. v. Council, 56 N. W. Rep. 570

8 St Louis County Court v. Sparks, (Mich., 1893).
10 Mo. 117; & C, 45 Am. Dec. 355;



764 MANDAMUS. [§ 793.

to as the speediest and best method of settling a dispute be-
tween two claimants to a municipal office,^ and to compel the
recognition of a de facto officer until the rights of the parties
can be determined.^

Sec. 793. It Avill not control discretion.— While a writ
will issue to compel an officer or an inferior tribunal to exer-
cise its judgment, or to proceed to discharge any of its func-
tions, or to perform an act which may be discretionary, it
cannot be used to control discretion whether the act be
judicial or one ^'^asi-judicial in its nature.^ If no private
rights intervene, courts cannot compel the exercise of discre-
tion.* The expediency of the construction or repair of a
bridge is discretionary with the commissioners.' The discre-
tion of an officer must be exercised upon his own responsibil-
ity, and no other tribunal can, in the absence of bad faith,
fraud or gross abuse of discretion, interfere or control it,
whatever differences of opinion there might be as to the pro-
priety of the action.® The writ will be allowed, however,
where there has been a clear abuse of discretion,' and will also
compel a recusant officer to exercise it by setting him in mo-
tion, and requiring him to act promptly in obedience to law.'
But it cannot be invoked to correct errors,^ nor to compel
a general course of official conduct. An officer who disre-
gards or violates his duty may be required to perform a
certain act or vacate an order, or to perform a public duty;
but no suggestion as to the manner of performance can be

1 Keough V. Board, lo6 Mass. 403. * State ex rel. v. Commissioners, 49

2 In re Delgado, 140 U. S. 586. O. S. 301.

8R. S., sec. 6742; Commissioners v. ^ Turnpike Road v. Commissioners,
Commissioners, 24 O. S. 401 ; State v. 1 O. S. 149. This case is evidently
Harris, 17 O. S. 608; Burnett v. overruled on the point of compelling
Auditor, 13 O. 54; Commissioner action. State ex rel. v. Moore, 42
V. Board, 39 O. S. 628 ; State v. Com- O. S. 108 ; 1 O. S. 149 ; State v, Har-
missioners, 26 O. S. 24; Ex parte ris, 17 O. S. 608 ; State ex reL v. Rich-
Black, 1 O. S. 30 ; State ex reL v. ardson, 40 O. S. 652 ; State ex reL v.
Campbell, 48 O. S. 442; Dalton v. Erman, 18 W. L. B. 173; Moses on
State, 43 O. S. 652; State v. Smith, 5 Mandamus, sec. 78.
W. L. B. 881 ; State ex reL v. Com- ^ Virginia v. Rives, 100 U. S. 323.
missioner, 49 O. S. 801 ; State ex rel. 8 Littlefield v. NevveH, 87 Atl. Rep.
V. Crites, 48 O. S. 460 ; State ex rel. 110 (Me., 1893) ; State ex rel. v. Com-
V. Commissioners. 26 O. S. 364. missioners, 31 O. S. 451.

* Turnpike Road V. Commissioners, » State ex reL v. Crites, 48 O. S.

lO.S. 149. 460.



§ 79-i.] MANDAMUS. 7G5

made, as courts will not' become schools for the training of the
inefficient.^

Sec. 794. Mandamus to state officials. — Mandamus is issued
upon the theory that the judiciary of a state is supreme,
and that its authority is absolute in the determination of all
legal questions brought before it, and that no person is placed
beyond the restraining authority of the law. The propriety
or impropriety of issuing the writ is determined, not by the
office of the person to whom it is directed, but by the nature
of the thing to be done."'^ There are many duties imposed by
law upon the governor of a state, and if the writ were not
allowed to issue against him it would be impossible to obtain
redress for the violation of many rights.^ Although the dis-
cretion of a governor cannot be controlled by judicial power,
yet as to any ministerial act which may be required of him
affecting any specific private right he is amenable to the
compulsory process of a court by mandamus.* This doctrine,
however, is disputed by a strong array of authority.' It will
therefore lie to compel the governor to issue a proclamation
enjoined upon him by law;* but not to compel him, as a
member of a canvassing board, to re-assemble the board and
to ascertain and count certain votes, containing the initial let-
ter only of the Christian name of a candidate, as different
from those votes containing the full Christian name, in the

1 State ex reL v. Murphy, 3 O. C. C. State ex rel. v. Churchill, 56 N. W.

333; State ex rel. v. Columbus, 19 Rep. 484-5 (Neb., 1893).

W. L. B. 347 ; State ex rel. v. Francis, ^ Marbury v. Madison, 1 Cranch,

95 Mo. 44. A rule witliout exception 170.

is that the writ of mandamus will ' State v. Martin, 38 Kan. 641.

not be allowed to compel officers * State v. Chase, 5 O. S. 528 (1856) ;

vested with discretionary powers to State v. Thayer, 47 N. W. Rep. 704

make a particular decision, or to set (Neb., 1891); Martin v. Ingham, 38

aside one already made, notwith- Kan. 641; State v. Blasdel. 4 Nev.

standing such decision is erroneous 241 ; Middleton v. Low, 30 Cal. 596 ;

in the sense that it may be reversed Greenwood, etc.. Land Co. v. Routt,

upon appeal, writ of error, or other 17 Colo. 156; Gray v. State, 72 Ind.

appellate proceeding. See State v. 567.

Commissioners of Hamilton County, 5 state ex rel. v. Stone, 25 S. W.

36 0. S. 364; People v. Chapin, 104 Rep. 376 (Mo., 1894), and numerous

N. Y. 96 ; 10 N. E. Rep. 141 ; People cases cited by the court : High, Ex.

V. Board of Auditors, 10 Mich. 307; Rem., sec. 118; Merrill on Manda-

14 Amer. & Eng. Enc. Law, and note ; mus. sec. 95 et seq.

•> State V. Chase, supra.



766 MANDAMUS. [§ T94.

absence of an averment that the votes were intended for dif-
ferent persons.^ And where the governor, auditor and sec-
retary of state have made an apportionment of the state for
members of the general assembly, they cannot be required by
mandamus to make another apportionment, unless the one
made so far disregards the principles prescribed by the con-
stitution as to warrant the court in saying that there was
in fact no apportionment made, and that what was done was
null and void.'^

The writ may also be invoked to compel an auditor of state
to perform a ministerial act,'' such as to compel the payment
of an appropriation,* or to accept returns for taxation,' or to
ap])ortion taxes,® but not to draw a warrant for the payment
of articles not authorized to be purchased by an agent of the
state,^ or for the payment of compensation of officials not
authorized by law.* A state insurance commissioner cannot
be compelled to issue a certificate of authority to a corpora-
tion oro-anized under the laws of another state to do busi-
ness upon a plan, by the laws of which state, companies of
other states are not entitled as of right to a certificate of
authority to do business therein ;" nor can it be used to prevent
the commissioner from revoking a license of a company ; '" nor
can the superintendent of an insane asylum be compelled to
receive a discharged patient." A state reporter may be com-
pelled by mandamus to deliver manuscript to a person having
the contract for the printing of the state reports i^'^ and so
may the trustees of a state institution be compelled to award
and execute a contract,^' but not at the suit of the lowest re-

» State ex reL v. Foster, 38 O. S. 599 7 Boyer v. Morgan, 5 O. S. 583.

(1888). 8 State ex rel. v. Williams, 34 O. S.

2 State ex reL v. Campbell, 48 O. & 218 ; Fordyce v. Godman, 20 O. S. 1.
435. 9 State ex rel. v. Moore, 39 O. S. 486.

3 State V. Warner, 55 Wis. 271; lo State ex rel. v. Hahn, 30 W. L. B.
Free Press Ass'n v. Nichols, 45 Vt 7. 391 ; 50 O. S. 714.

« State ex rel. v. Oglevee, 36 O. S. n Rutter v. State, 38 O. S. 496.

211 ; State ex rel. v. Oglevee, 37 O. S. 12 Banks v. Devvitt, 42 O. S. 263.

1; Fordyce V. Godman, 20 O. S. 1. is Beaver v. Trustees, 19 O. S. 97.

» Bank v. McGregor, 6 O. S. 45. But see State ex rel. v. Barnes, 35

estate ex reL v. Auditor, 15 0. S. O. S. 136. See State ex reL v. Jones,

482. 17 O. S. 148.



§ 795.] MANDAMUS. 767

sponsible bidder, Avhere a contract has already, by mistake,
been made with a higher bidder.^

Sec. 795. Mandamus to judges ami courts. — The writ of
mandamus may be issued against inferior courts as well as
against other officials. A common use of the writ is to
keep inferior courts within lawful bounds, and it is now the
established remedy to compel inferior courts and magistrates
to do that justice which they are in duty, and by virtue of their
office, bound to do.^ While there are many instances where
the writ has been resorted to as against courts, it would not
be consistent here to extensively review them.' The rule is
well settled that it cannot be used to correct errors committed
by a court, or in fact any tribunal exercising judicial functions.*
It will also issue to compel a court to exercise a discretion
but not to control it.®

The right to resort to a writ of mandamus to compel a
judge to allow and sign a bill of exceptions is well settled.^
A judge cannot refuse to allow and sign a bill of exceptions
merely because he feels satisfied that the relator had a fair
and impartial trial.^ But he cannot be compelled to sign a
bill when he refuses on the ground that it is not a true one,^
as the power of determining whether a bill is true or not
rests entirely with the judicial officer to w^hom it is presented,**
and his decision upon this question is final.^'* But he may be

1 State ex rel. V. Commissioners, 18 As to compelling a justice of the
O. S. 386. peace to sign a bill of exceptions, see

2 Virginia v. Rives, 100 U. S. 313- State ex rel. v. Wood, 22 O. S. 537;
328; Tapping on Mandamus, 105; State ex reL v. Bickman, 4 O. C. C.
Ex parte Bradley, 7 Wall. 364 ; Mer- 246. See Pugh, Judge, v. State, 81
rill on Mandamus, sec. 186; In re W. L. B. 194; 51 O. S. — .
Turner, 5 O. 542, 543. '' State ex rel. v. Hawes. 43 O. S. 16.



3 See ch. 14, Merrill on Mandamus,

* State ex rel, v. Nemaha Co., 10 Neb,
32; State ex rel. v. Kinkaid, 23 Neb
641 ; 37 N. W. Rep. 612 ; McGee v. State,
32 Neb. 149; 49 N. W. Rep. 220
State ex rel. v. Holmes, 56 N. W. Rep,
979 (Neb., 1893).

6 State V, Webre, 44 La. Ann. 1081
11 So. Rep. 706.

estate ex rel. v. Hawes, 43 O. S. 16
Page V. Judge, 80 Gratt 417. See Peyton, 12 Kan. 616,
State ex rel. v. Paul, 11 W. L. B. 234.



8 Creager v. Meeker, 22 O. S. 207 ;
People V. Pearson, 2 Scam. 189 ; S. C,
3 Scam. 270 ; State ex rel. v. Todd, 4
O. 351.

9 State ex rel. v. Bickham, 4 O. G
C. 246 ; Creager v. Meeker, 22 O. S.
207 ; State ex rel. v. Linn, 3 W. L. B.
428.

10 Creager v. Meeker, 22 O. S. 207 ;
State V. Todd, supra; Shepard v.



708 MANDAMUS. [§ 796.

compelled to sign a particular bill which is conceded by him
to correctly state the facts;' and if he refuse he must make
known the cause for such refusal.^

A probate judge may be compelled by mandamus to issue a
warrant for the discharge of a patient from an asylum.' It will
not issue to compel a court to hold court and hear an applica-
tion to be admitted to bail.* In a proper case mandamus will
issue to require a court of inferior jurisdiction to take bail.'
It will lie to compel the acceptance of a surety and the sus-
pension of the jurisdiction of a court,^ and to exercise its juris-
diction.'' Where a judge determines that he has not jurisdic-
tion, mandamus will not compel him to proceed in the usual
manner, but the question of jurisdiction must be determined
on error.^ It may be awarded for the correction of records,
in which case it is properly directed to the judge." It will
not lie to compel a judge to appoint counsel in a criminal case,
when there is no such delay as will raise the inference that no
appointment will be made.'"

Sec. 796. Mandamus to county officials.— The writ has
been used to compel a county auditor to transfer real estate on
the tax duplicate to the name of another person," or to com-
pel the refunding of taxes paid into the treasury by mistake; '-
but he cannot be compelled to enter a tax upon the duplicate
until the time arrives for making it up.'* He may be com-
pelled to pay costs in a criminal case out of the county treas-
ury ; " to draw warrants upon the treasury which are required
by law;'* to draw a warrant for the payment of a sum of

1 State ex rel. v. Hawes, 43 O. S. 9 Hollister v. Judge, 8 O. S. 201.

16 ; Douglas v. Looinis, 5 W. Va. 542. lO Baker v. State, 86 Wis. 474 ; 56 N.

2 State ex rel. v. Judge, 1 W. L. J. W. Rep. 1038 (1893).

358. 11 Cincinnati College v. Yeatman,

3 State ex rel. v. Burgoyne, 7 O. S 30 O. S. 276 ; Cincinnati College v.

153. La Rue, 22 O. S. 469.

* Kendle v. Tarbell, 24 O. S. 196. 12 Flack v. Humphreys, 24 O. S. 335.

5 State V. Von Martels, 11 W. L. B. >» Zanesville v. Richards, 5 O. S. 589.

154. ^* Raber v. Auditor, 12 O. S. 429.

6 State ex rel. v. Court of Common ^^ State ex rel. v. Van Ilorne, 7 O, S.
Pleas, 15 O. S. 377. See State ex rel. 327 ; Smith v. Commissioners, 9 O.
V. Block, 3 W. L. B. 792. 256; State v. Armstrong, 12 O. 116;

7 In re Turner, 5 O. 542. for jury's board, State ex rel. v. An-
SMcBride v. Murray, 25 N. Y. S. ditor, 43 O. S. 311.

431.



§ TUO.] MANDAMES. 709

money wrongfully allo\Ve(l by the commissioners ;' to draw
a warrant for the payment of a bill approved by a county
oiScial but not allowed by the commissioners ;2 to issue an
order for the payment of excessive jury fees, even thouo-h
certified to by the clerk ;=♦ to draw an order upon the treas-
ury where he has no right to determine the amount, unless
the same has been ascertained or liquidated;* or to com-
pel him to call attention of the commissioners to erroneous
taxes charged and collected in previous years.* A citizen and
tax-payer of a school district is a proper party to enforce by
mandamus an official duty by the auditor.®

The writ will be awarded to compel a treasurer to pay
orders ^ or to compel the transfer to the state treasury of the
state's proportion of taxes.^ It is the appropriate remedy to
compel clerks of courts to perform their official duties.^ A
clerk may be compelled to make out an order and certificate
for a change of venue,^" or to issue an execution upon a judg-
ment upon demand therefor,'^ or to enter an order upon the
journal of the court.'^ It will not lie to compel a clerk to give
a certificate of election unless the person is clearly entitled to
it;^^ nor to compel the performance of a municipal act by a
clerk which was not performed at the proper time, when no
longer consistent with the rights of the parties;" noy to com-
pel a clerk and justices to canvas election poll-books and fur-
nish evidence to a person upon which to base a contest;^* or
to abstract votes cast for a person to an office, unless the same
is required to be filled by the electors at an election;" or to

1 State ex rel. v. Yeatman, 22 O. S. 9 High on Ex. Rem., sees. 17, 24, 80.
546. 10 State v. Shaw, 43 O. S. 324.

2 State ex rel. v. McConnell, 28 » State ex rel. v. Eager, 3 O. C. C.
O. S. 589. 581.

3 State V. Merry, 34 O. S. 137. 12 state ex rel. v. Meachem, 6 O. G
< Commissioners v. Auditor, 1 O. S. C. 31.

333. 13 State ex rel. v. Dambaugh, 20

3 State ex reL v. Werk, 11 W. L. O; S. 167.
B. 39. i« Ingerson v. Berr}% 14 O. S. 316.

estate v. Henderson, 38 O. S. 644; is State ex rel. v. Stewart. 26 O. S.

State V. Cappeller, 39 O. S. 468. 216.

7 Case V. Wresler, 4 O. S. 561 ; Cass i^ State ex reL v. McGregor, 44 O. S.
Tp. V. Dillon. 16 O. S. 38. 628.

8 State ex rel. v. Staley, 38 O. S.
259.

49



ro



MANDAMUS.



[§ 796.



compel a clerk to transmit papers in a case for the removal of
a cause in an action not clearly falling within the law.^



Online LibraryEdgar B. (Edgar Benton) KinkeadThe law of pleading : in civil actions and defenses under the code : also practice in appeal and error : with numerous forms and precedents (with special reference to the Ohio code) → online text (page 1 of 74)