Page:United States Statutes at Large Volume 47 Part 1.djvu/1035

 72d C ONGRESS. SESS. II. CH. 127 . FEB RUARY 27, 1933. 1011 issue d ; but if the application is upon due notice and the writ is allowed, the peremptory may be issued in the first instance. With the alternative writ and also with any notice of an intention to apply for the wr it, t here must be se rved on ea ch pe rson again st wh om the writ is sought a copy of the petition. The notice of the applica- tion, when given, must be at least ten days. The wr it can not be gra nt ed by default. The case must be heard by the court, whether the adverse party appears or not. SEC. 585. THE AD VER SE PARTY MAY ANSWER UN DER O ATH .-On the Answer under oath. return of the alternative, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may answer the petition under oath, in the sa me manner as an answer to a complaint in a civil action. SEC. 586 . APPLICANT NOT PRECLUDED BY AN SWER FROM OBJECTION Appli cant not p re. chided thereby from TO ITS SUaJfICIENCY .-On the trial, the applicant is not precluded objection to sul5cies :y by the answ er fr om any val id ob jecti on to its suffi cienc y, and may of a nswer . countervail it by proof either in direct denial or by way of avoidance. SEC. 587. HEARINGS BY couRT.-If no answer be made, the case must Hearing. be heard oil the papers of the applicant. SEC. 588 . RECOVERY OF DA MA GES BY APPLI CANT .-If judgment be ecovery of dam- given for the applicant, he may recover the damages which he has susta ined as may be deter mined by the co urt or ref eree, upon a refere nce to be order ed, t ogeth er wi th co sts and for such damages and costs an execution may issue ; and a peremptory mandate must also be aw arded with out delay. SEC. 589. SERVICE OF THE wRrr.-The wr it mu st be served in the service of . same manne r as a sum mons in a civil acti on, e xcept when othe rwise expressly directed by order of the court. Service upon a majority of the mem bers of any boa rd or body , is servi ce up on the boa rd or body, whet her at the time of the se rvice the board or b ody was in session or not. SEC. 590 . PENALTY FOR DISOBEDIENCE TO THE WRIT.-When a pe r- Penalty for disobe y emptory mandate has be en issued and directed to any inferior thence to . tribunal, corporation, board, or person, if it appear to the court th at any member of such tribunal, corporation, or board, or such person up on whom the writ has been personally served, has, without ju st excuse, refused or neglected to obey the same, the court may, upon motion, impose a fine not exceeding $1,000 . In case of persistence in a refusal of obedience, the court may order the party to be im- pri son ed until the wr it is obeyed, and may mak e any orders necessary and proper for the complete enforcement of the writ. WRIT OF PROHIBITION Wri t o f prohibition. SEC. 591. WRIT OF PROHIBITION DEFINED .-The writ of prohibition Defined. is the counterpart of the writ of mandate. It arrests the proceed- in gs of any tribunal, corporation, board, or person exercising judicial fun ct ion s, wh en su ch proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person. SEC. 592. WHERE AND WHEN WRIT ISSUED .-It may be issued by the Issue of. district court, to an inferior tribunal or to a corporation, board, or person, in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It is issued upon the verified pet it ion of the person beneficially interested. SEC. 593. WRIT MUST BE EITHER ALTERNATIVE OR PEREMPTORY, FORM Either alternative or op .-The writ must be either alternative or peremptory. T he al ter- perem ptory. native writ must command the party to whom it is directed to desist or refrain from further proceedings in the action or matter specified therein, until the further order of the district court, and to show