The writ is either alternative or peremptory. The alternative writ shall state concisely the facts showing the obligation of the defendant to perform the act, and his omission to perform it, and command him, that immediately after the receipt of the writ, or at some other specified time, he do the act required to be performed, or show cause before the court out of which the writ issued, at a specified time and place, why he has not done so; and that he then and there return the writ with his certificate of having done as he is commanded. The peremptory writ shall be in a similar form, except that the words requiring the defendant to show cause why he has not done as commanded, shall be omitted.
History: Laws 1884, ch. 1, § 40; C.L. 1884, § 1995; C.L. 1897, § 2763; Code 1915, § 3415; C.S. 1929, § 86-105; 1941 Comp., § 26-106; 1953 Comp., § 22-12-6.
ANNOTATIONSCross references. — For writ and answer being only pleading allowed in mandamus proceeding, see 44-2-11 NMSA 1978.
Contents of the permanent writ. — No rule requires a permanent writ that follows an alternative writ to contain the recitation of facts required in Section 44-2-6 NMSA 1978. Where a party has made a full scale response to the issuance of a writ it cannot successfully attack the permanent writ for legal insufficiency. Os Farms, Inc. v. N.M. Am. Water Co., Inc., 2009-NMCA-113, 147 N.M. 221, 218 P.3d 1269.
Contents of the peremptory writ. — The peremptory writ failed to state a claim for relief when it contained only bare legal conclusions and alleged no facts supporting a ministerial duty. Brantley Farms v. Carlsbad Irrigation Dist., 1998-NMCA-023, 124 N.M. 698, 954 P.2d 763.
Facts pleaded in same manner as in ordinary actions. — Allegations of fact in mandamus proceedings should be pleaded with the same certainty, no more and no less, as in ordinary actions. State ex rel. Burg v. City of Albuquerque, 1926-NMSC-031, 31 N.M. 576, 249 P. 242.
Allegations of fact 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 County Bd. of Educ. v. Valdez, 1956-NMSC-078, 61 N.M. 361, 300 P.2d 943.
To entitle relator to writ of mandamus he must first show himself to be entitled legally to some right properly the subject of the writ, and that it is legally demandable from the person to whom the writ is directed; second, that the person to whom the writ is directed still has it in his power to perform the duty required; third, that whatever is required to be done by the said relator as a condition precedent to the right demanded must be shown affirmatively to have been done by him. Territory ex rel. Gildersleeve v. Perea, 1892-NMSC-018, 6 N.M. 531, 30 P. 928, appeal dismissed, 163 U.S. 697, 16 S. Ct. 1207, 41 L. Ed. 307 (1896), overruled on other grounds by Cavender v. Phillips, 1937-NMSC-016, 41 N.M. 235, 67 P.2d 250 (decided under former tax law).
Requirement that writ contain allegations of all facts necessary to authorize the relief sought applies with great reason to peremptory writs of mandamus issued in ex parte proceedings. Mora County Bd. of Educ. v. Valdez, 1956-NMSC-078, 61 N.M. 361, 300 P.2d 943.
Requirements not met when no showing of obligation to act. — Compliance with the requirements of the statute which governs content of writs of mandamus was not had where there was no statement of facts showing respondent's obligation to perform any particular act, and the essential elements were not inferable from what is said in the petition. Birdo v. Rodriguez, 1972-NMSC-062, 84 N.M. 207, 501 P.2d 195.
Writ must allege facts necessary to authorize relief sought. — Once the proceeding is accepted as one in mandamus, then certain well-recognized rules emerge to control the consideration of the case. A most important one is that the case must be tried on the 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. Alfred v. Anderson, 1974-NMSC-036, 86 N.M. 227, 522 P.2d 79.
Appeal dismissed where required procedures in mandamus proceedings not followed. — Where procedures, required in mandamus proceedings, were not followed as no writ ever issued, and the order to show cause did not even closely approximate the requirements of a writ; none of the ordinary elements expected and required to be in a writ were found in the order; no issues were raised or presented at trial in the required manner, and, consequently, could not have been tested as to sufficiency according to ordinary rules of pleading, then an appellate court must dismiss the appeal. Alfred v. Anderson, 1974-NMSC-036, 86 N.M. 227, 522 P.2d 79.
Erroneous dismissal contested without formal exception. — A judgment dismissing an action and quashing an alternative writ of mandamus, because of failure of the writ to comply with the requirements of this section, if erroneously entered and appearing in the record proper, is inherently and fatally defective, and may be contested in the supreme court without formal exception. State ex rel. Burg v. City of Albuquerque, 1926-NMSC-031, 31 N.M. 576, 249 P. 242.
Writ not void because title to office incidentally involved. — In mandamus proceeding involving contempt for failure of an official to recognize one of rival claimants for county office, where the court had jurisdiction of the subject matter and the parties, the writ was not void because it involved incidentally the title to the office. Delgado v. Chavez, 1891-NMSC-012, 5 N.M. 646, 25 P. 948, aff'd sub nom. In re Delgado, 140 U.S. 586, 11 S. Ct. 874, 35 L. Ed. 578 (1891).
Where factual allegations were not contested, either in the trial court or on appeal, it is concluded that the party admitted the factual allegations and waived its right to any defects in the writ. City of Sunland Park v. N.M. Pub. Regulation Comm'n, 2004-NMCA-024, 135 N.M. 143, 85 P.3d 267, cert. denied, 2004-NMCERT-002, 135 N.M. 169, 86 P.3d 47.
Law reviews. — For article, "Mandamus in New Mexico," see 4 N.M. L. Rev. 155 (1974).
For note, "Mandamus Proceedings Against Public Officials: State of New Mexico ex rel. Bird v. Apodaca," see 9 N.M.L. Rev. 195 (1978-79).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 52 Am. Jur. 2d Mandamus §§ 427, 428, 477.
55 C.J.S. Mandamus §§ 317, 349.