No other pleading or written allegation is allowed than the writ and answer. They shall be construed and amended in the same manner as pleadings in a civil action, and the issues thereby joined shall be tried and further proceedings had in the same manner as in a civil action.
History: Laws 1884, ch. 1, § 45; C.L. 1884, § 2000; C.L. 1897, § 2768; Code 1915, § 3420; C.S. 1929, § 86-110; 1941 Comp., § 26-111; 1953 Comp., § 22-12-11.
ANNOTATIONSCross references. — For contents of the writ, see 44-2-6 NMSA 1978.
For construction of pleadings, see Rule 1-008F NMRA.
For amended and supplemental pleadings, see Rule 1-015 NMRA.
For the rules regulating trials, see Rules 1-038 to 1-053 NMRA.
Writ and answer only mandamus pleadings considered before supreme court. — On a petition for writ of mandamus under original jurisdiction of the supreme court, the pleadings to be considered are the petitioner's alternative writ of mandamus and the answer by the respondent. State ex rel. Heron v. Kool, 1943-NMSC-027, 47 N.M. 218, 140 P.2d 737.
Case must be tried on writ and answer. — The complaint itself drops out of the picture and the writ must contain allegations of all facts necessary to authorize the relief sought. Furthermore, allegations in the writ should be made as in ordinary actions. Hence, the usual rules applicable in testing the sufficiency of a complaint in an ordinary civil action apply. The facts should be pleaded with the same certainty, neither more nor less. Laumbach v. Board of Cnty. Comm'rs, 1955-NMSC-096, 60 N.M. 226, 290 P.2d 1067.
Pleadings are to be construed as in ordinary civil actions. State ex rel. Garcia v. Board of Comm'rs, 1916-NMSC-030, 21 N.M. 632, 157 P. 656.
Writ must allege facts necessary to authorize relief sought. Alfred v. Anderson, 1974-NMSC-036, 86 N.M. 227, 522 P.2d 79.
Fact allegations in application form no part of writ. — Allegations of fact in an application for alternative writ of mandamus form no part of the writ and ordinarily cannot be so considered in determining the legal sufficiency of the writ. Mora Cnty. Bd. of Educ. v. Valdez, 1956-NMSC-078, 61 N.M. 361, 300 P.2d 943.
Unless respondent answers allegations as though they were in writ. — Where respondent answers the allegations in the application, treating them as though contained in the alternative writ, they should be treated as supplementing those contained in the writ. Allegations of fact should be pleaded with the same certainty as in ordinary actions. State ex rel. Burg v. City of Albuquerque, 1926-NMSC-031, 31 N.M. 576, 249 P. 242.
Time extension and leave to amend freely given when necessary. — While office of mandamus is to afford a speedy remedy and to avoid delay, this does not mean that the court is without power to extend the time within which a respondent may answer, or that the answer may not be amended, and leave to amend should be freely given when justice demands. State ex rel. Fitzhugh v. City Council of Hot Springs, 1952-NMSC-022, 56 N.M. 118, 241 P.2d 100.
Legal objections raised by answer only. — The issues in mandamus are created solely by and are limited to the allegations of the writ and the answer thereto. Legal objections must be raised by the answer and, where the defense of abandonment of the suit after judgment was not in the pleadings, it could not have been considered or passed upon by the trial court. State ex rel. State Hwy. Comm'n v. Quesenberry, 1963-NMSC-113, 72 N.M. 291, 383 P.2d 255.
Issues must be raised by answer. — In mandamus to compel levy of tax to satisfy judgment on certificates of indebtedness, issues, requiring allegations of fact pleaded in bar should have been raised by answer and not by demurrer (now motion) to alternative writ. State ex rel. Chesher v. Beall, 1937-NMSC-079, 41 N.M. 652, 73 P.2d 329.
Court may construe pleading raising legal questions as answer. — Though a motion to dismiss is not an appropriate pleading in mandamus, the court may construe a pleading which raises legal questions as an answer, admitting the facts stated therein and invoking the court's application of the law thereto. State ex rel. Fitzhugh v. City Council of Hot Springs, 1952-NMSC-022, 56 N.M. 118, 241 P.2d 100.
With exception of pleadings mandamus tried as other civil actions. — Mandamus is a civil action, and, with the exception of the pleadings, is tried and proceeded with in the same manner as other civil actions. The writ and the return constitute all the pleadings which shall be allowed. If the writ does not state sufficient grounds to authorize it, the respondent might demur (now move) thereto, and thus raise a question of law, which, if overruled by the court, would be such a final judgment as would authorize him to appeal. Eldodt v. Territory ex rel. Vaughn, 1900-NMSC-015, 10 N.M. 141, 61 P. 105; Conklin v. Cunningham, 1894-NMSC-005, 7 N.M. 445, 38 P. 170; Perez v. Barber, 1893-NMSC-021, 7 N.M. 223, 34 P. 190.
Appeal dismissed where required procedures in mandamus proceedings not followed. Alfred v. Anderson, 1974-NMSC-036, 86 N.M. 227, 522 P.2d 79.
Jury trial not necessary preliminary to valid judgment. — Determination of the facts by a jury in a mandamus case is not a necessary preliminary to a valid judgment. Delgado v. Chavez, 1891-NMSC-012, 5 N.M. 646, 25 P. 948, aff'd, 140 U.S. 586, 11 S. Ct. 874, 35 L. Ed. 578 (1891); Territory ex rel. Lewis v. Board of Cnty. Comm'rs, 1888-NMSC-015, 5 N.M. (Gild., E.W.S. ed.) 1, 16 P. 855.
Inconsistencies in mandamus and quo warranto proceedings grounds for quashing. — The denial in proceedings by mandamus that the plaintiff therein was a de facto sheriff, while maintaining, as he must, in a collateral proceeding by way of quo warranto, that the same person was de facto in charge of the office, was so inconsistent that the return containing the denial could have been quashed for this reason alone. Conklin v. Cunningham, 1894-NMSC-005, 7 N.M. 445, 38 P. 170.
Amicus curiae cannot raise constitutionality where party fails to. — An amicus curiae is not a party and cannot assume the functions of a party; he must accept the case before the court with the issues made by the parties, and if the constitutionality of a statute is not raised by a party claiming to be adversely affected, the amicus curiae cannot do so. State ex rel. Burg v. City of Albuquerque, 1926-NMSC-031, 31 N.M. 576, 249 P. 242.
Law reviews. — For article, "Mandamus in New Mexico," see 4 N.M. L. Rev. 155 (1974).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Mandamus § 413.
55 C.J.S. Mandamus § 257.