People ex rel. Van Valkenburgh v. Sage

Headnote

A rule entered, granting an alternative mandamus, may properly be entitled in the cause. Affidavits, upon which an apnlication for an alternative mandamus is founded, should not be entitled.

Motion 'by defendants to quash an alternative mandamus, and the rule granting it.

This motion was made to vacate the rule authorizing a mandamus to issue, entered on the 11th of December last, and also to quash or supersede the writ, on the ground that the rule was improperly entitled, and was unauthorized by the court. The rule was entered entitled as above. It was insisted by defendant’s counsel on the argument, that a rule for a mandamus could not properly be entitled in the cause; the entitlingshould have been, “ In the matter of, &c., for a mandamus, &c.”

The chief justice held that the rule was properly entitled; he said the affidavits for an application for a mandamus should not be entitled at all, but after the ordér was granted by the court, the rule might properly be entitled in the suit. The defendants’ counsel urged, on the merits, that the rule was entered for more than was granted by the court.