Page:North Dakota Reports (vol. 3).pdf/285

 both the process and the pleading in the special proceeding. But it cannot be doubted that there are precedents warranting an application for a peremptory writ on notice without the preliminary issue of the alternative writ, and our Code recognizes this practice. Sections 5520, 5521, Comp. Laws. Accompanying the notice of application for the writ was an affidavit, and in the notice it was stated that the relator would apply. for a “writ of mandamus” upon the facts set forth in such affidavit. On the hearing a petition was also filed, embodying, in substance, the same facts embraced in the affidavit. In this petition there was a prayer for a peremptory writ of mandamus. The defendant filed an answer on the return day, and also an affidavit in which were set forth the same facts which were contained in the answer. The contention of the relator in this court is that he applied on this hearing for an alternative writ, and that the court erred in refusing to issue such writ. We do not so construe the record. It is apparent from the record that the parties intended to and did submit to the court all controverted questions of fact upon the pleadings and the affidavits, and upon admissions made in open court after the answer was filed. The order denying the application for the writ recites that there was a hearing of the relator's application for a writ of mandamus at a regular term of court, and that on this hearing these affidavits were read and filed, and that certain facts were ‘admitted by the parties to the proceeding. Why these admissions were made, if the only object was to ask for an alternative writ, it is impossible to discover. The issues to be tried would be formed by the return or answer to the alternative writ, were it intended that such writ should be issued. Why, therefore, make admissions in the application for such a writ? The time for admissions, and the use of affidavits, would be upon the trial of such issues, after the alternative writ had been granted. What possible object could the relator have had in securing an alternative writ? To this writ the same answer would have been made, and the same issues would have been presented for trial which were already before the court for trial in this more informal