Nebraska Revised Statute 25-2157

Chapter 25 Section 2157

25-2157.

Writ; when not issued.

The writ of mandamus may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. It may issue on the information of the party beneficially interested.

Source

  • R.S.1867, Code § 646, p. 507;
  • R.S.1913, § 8272;
  • C.S.1922, § 9225;
  • C.S.1929, § 20-2157;
  • R.S.1943, § 25-2157.

Annotations

  • 1. Adequate remedy at law

  • 2. When not issued

  • 1. Adequate remedy at law

  • For writ of mandamus to issue, there must be no other plain and adequate remedy available in the ordinary course of law. State ex rel. Fick v. Miller, 255 Neb. 387, 584 N.W.2d 809 (1998).

  • Mandamus is not available if there is an adequate remedy at law. Little v. Board of County Commissioners of Cherry County, 179 Neb. 655, 140 N.W.2d 1 (1966).

  • Where there is another adequate remedy, mandamus is not available. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960).

  • The writ of mandamus may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. State ex rel. Campbell v. Slavik, 144 Neb. 633, 14 N.W.2d 186 (1944); State ex rel. Cuming Co. Farm Bureau v. Tighe, 124 Neb. 578, 247 N.W. 419 (1933).

  • Writ of mandamus may not be issued in case where police officer alleges he has been illegally suspended by city council, as he has adequate remedy at law. State ex rel. Sutton v. Towl, 127 Neb. 848, 257 N.W. 263 (1934).

  • Writ will not issue to review action of inferior court, or to coerce judicial discretion, where there is adequate legal remedy. State ex rel. Garton v. Fulton, 118 Neb. 400, 225 N.W. 28 (1929).

  • Mandamus is not the proper remedy to correct errors in assessments for special benefits by equalization board. State ex rel. Funke v. Lancaster County, 110 Neb. 635, 194 N.W. 807 (1923).

  • Correct practice is to issue writ in the name of the state upon the relation of the party claiming the relief sought. City of Crawford v. Darrow, 87 Neb. 494, 127 N.W. 891 (1910).

  • Appeal from county board of equalization is adequate; test of adequacy stated. State ex rel. Mickey v. Drexel, 75 Neb. 751, 107 N.W. 110 (1906).

  • Remedy by appeal from action of county board on claim is adequate; mandamus will not be allowed. Mitchell v. County of Clay, 69 Neb. 779, 96 N.W. 673 (1903), reversed on rehearing 69 Neb. 795, 98 N.W. 662 (1904).

  • Mandamus to compel issuance of warrant would not issue where adequate remedy at law existed. Horton v. State ex rel. Hayden, 60 Neb. 701, 84 N.W. 87 (1900).

  • Where county board of equalization could grant relief, mandamus will not lie. State ex rel. Young v. Osborn, 60 Neb. 415, 83 N.W. 357 (1900).

  • Mandamus is not allowed where statute has provided special remedy. Nebraska Tel. Co. v. State ex rel. Yeiser, 55 Neb. 627, 76 N.W. 171 (1898).

  • Mandamus will not lie in first instance in Supreme Court to compel action by clerk of district court. State ex rel. Solman v. Moores, 29 Neb. 122, 45 N.W. 278 (1890).

  • Right of review or appeal prevents mandamus. State ex rel. Neeland v. Follmer, 4 Neb. Unof. 376, 94 N.W. 103 (1903).

  • Mandamus will not issue to compel vacation of order granting new trial, as appeal is adequate remedy. State ex rel. Chadron L. & B. Assn. v. Westover, 2 Neb. Unof. 768, 89 N.W. 1002 (1902).

  • 2. When not issued

  • A writ of mandamus is an extraordinary remedy and may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. State ex rel. Greyhound Lines, Inc. v. City of Omaha, 227 Neb. 676, 419 N.W.2d 539 (1988).

  • Mandamus will not lie to compel a city to revoke a development permit it has issued. Larson v. City of Omaha, 226 Neb. 751, 415 N.W.2d 115 (1987).

  • The mere fact that there is another remedy at law will not prevent the issuance of a writ of mandamus unless the other remedy is adequate to afford relief upon the very subject matter involved. State ex rel. Herman v. City of Grand Island, 145 Neb. 150, 15 N.W.2d 341 (1944).

  • Judgment for debt against county is a condition precedent to issuance of writ of mandamus to make levy for its payment. State ex rel. Warren v. Raabe, 140 Neb. 16, 299 N.W. 338 (1941).

  • Where remedy by inspection and copying books and papers is inadequate, mandamus will lie to enforce stockholder's right to inspect books and records of state bank. State ex rel. Charvat v. Sagl, 119 Neb. 374, 229 N.W. 118 (1930).

  • Discretion of state board in awarding contract to lowest responsible bidder will not be controlled by mandamus. State ex rel. Neb. Building & Inv. Co. v. Board of Comrs. of State Institutions, 105 Neb. 570, 181 N.W. 530 (1921).

  • Mandamus will not lie to compel president pro tem of city council to name standing committees when duty is not enjoined by law. State ex rel. Bishop v. Dunn, 76 Neb. 155, 107 N.W. 236 (1906).

  • Mandamus does not lie to determine title to office. State ex rel. Coney v. Hyland, 75 Neb. 767, 107 N.W. 113 (1906); State ex rel. Truesdell v. Plambeck, 36 Neb. 401, 54 N.W. 667 (1893).

  • Mandamus is not proper to correct error of including irrelevant matter in bill of exceptions. State ex rel. Cobb v. Fawcett, 64 Neb. 496, 90 N.W. 250 (1902).

  • Mandamus will not lie to compel county board to construct drainage ditch, where relator is not shown to be interested. Van Horn v. State ex rel. Allen, 51 Neb. 232, 70 N.W. 941 (1897).

  • Mandamus lies to compel action, not to correct errors committed by court or other judicial body. McGee v. State ex rel. North American Cattle Co., 32 Neb. 149, 49 N.W. 220 (1891).

  • Mandamus will not lie to compel payment of dormant judgment. State ex rel. Craig v. School Dist. No. 2 of Phelps County, 25 Neb. 301, 41 N.W. 155 (1888).

  • Mandamus will not lie to compel building of railroad station. State ex rel. Moore v. Chicago, St. P., M. & O. R. R. Co., 19 Neb. 476, 27 N.W. 434 (1886).