Opinion
Department One
Appeal from a judgment and order for the issuance of a peremptory writ of mandate in favor of plaintiff, in the Third District Court of the City and County of San Francisco. McKee, J.
COUNSEL
S. W. Sanderson, McAllister & Bergin, and S. M. Wilson, for Appellant.
H. H. Haight, and Stephen H. Phillips & J. D. Murphy, for Respondents.
JUDGES: McKinstry, J. McKee and Ross, JJ., concurred.
OPINION
McKINSTRY, Judge
The action is by mandamus, to compel the defendant, under the Act of April 3, 1876, to furnish to the Commissioners of Transportation, created by that Act, certain information. (Stats. 1875-6, p. 783.)
The judgment appealed from is as follows: " In this action, the plaintiff's demurrer to the defendants' answers having been by this Court sustained, and the said defendants having failed to appear and amend their answers within the time allowed by law, therefore it is ordered that the default of the defendants, the Central Pacific Railroad Company, be entered for failure to amend their answers, and that a peremptory writ of mandamus issue."
The Code of Civil Procedure (Section 1088) provided, * * * " The writ [of mandate] can not be granted by default. The case must be heard by the Court, whether the adverse party appear or not." The judgment must therefore be reversed.
The Act of April 3, 1876, was repealed (without exception or reservation) by the tenth section of the third chapter of the Act of April 1, 1878 (Stats. 1877-8, p. 986); and, from the date last mentioned, the Commissioners of Transportation--to whom the judgment of the District Court commanded defendant to report--ceased to exist. It follows that the proceeding should be dismissed.
Judgment reversed, and Court below directed to dismiss the action.