Nebraska Revised Statute 25-2159
Peremptory writ; when allowed in first instance.
When the right to require the performance of the act is clear and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance. In all other cases, the alternative writ must be first issued, except that a peremptory mandamus in the first instance shall not be given in any case involving the delivery of irrigation water if the Director of Natural Resources as defined in section 25-1062.01 is a party.
- R.S.1867, Code § 648, p. 508;
- R.S.1913, § 8274;
- C.S.1922, § 9227;
- C.S.1929, § 20-2159;
- Laws 1941, c. 29, § 9, p. 137;
- C.S.Supp.,1941, § 20-2159;
- R.S.1943, § 25-2159;
- Laws 1957, c. 365, § 5, p. 1234;
- Laws 2000, LB 900, § 68.
When right to writ is clear and no excuse can be given for failure to perform duty, peremptory writ may be issued. State ex rel. Krieger v. Board of Supervisors of Clay County, 171 Neb. 117, 105 N.W.2d 721 (1960).
Peremptory writ may be issued without notice only where court can take judicial notice that a valid excuse is impossible. State ex rel. Beck v. Chicago, St. P., M. & O. Ry. Co., 164 Neb. 60, 81 N.W.2d 584 (1957).
Peremptory writ without notice should be issued only where legal right to it is clearly shown. Summit Fidelity & Surety Co. v. Nimtz, 158 Neb. 762, 64 N.W.2d 803 (1954).
A peremptory writ of mandamus may issue without notice only where there is no room for controversy as to the right of the applicant thereto, and where judicial notice can be taken that a valid excuse for failure to act cannot be given. State ex rel. Platte Valley Irr. Dist. v. Cochran, 139 Neb. 324, 297 N.W. 587 (1941).
Peremptory writ cannot issue without notice unless court can take judicial notice that defense is impossible. State ex rel. Chicago & N. W. Ry. Co. v. Harrington, 78 Neb. 395, 110 N.W. 1016 (1907).
Relator's right and respondent's duty must clearly appear. State ex rel. Niles v. Weston, 67 Neb. 175, 93 N.W. 182 (1903).
Peremptory writ may issue against public officer without notice but not against officer of private corporation. Horton v. State ex rel. Hayden, 60 Neb. 701, 84 N.W. 87 (1900).
Court may grant peremptory writ at chambers only when right is clear. Mayer v. State ex rel. Wilkinson, 52 Neb. 764, 73 N.W. 214 (1897).
When facts are disputed on hearing to show cause, alternative writ should issue. American Waterworks Co. v. State ex rel. O'Connor, 31 Neb. 445, 48 N.W. 64 (1891).