21-29-1      Power to issue writ--Purposes for which used.
21-29-2      Writ issued when ordinary remedy inadequate--Application and affidavit.
21-29-3      Alternative and peremptory writs--Terms of writ.
21-29-4      Grant of writ on default prohibited.
21-29-5      Alternative writ issued without notice--Minimum notice required for peremptory writ.
21-29-6      Service of writ--Service on majority of board.
21-29-7      Answer to show cause against writ.
21-29-8      Hearing by court when no answer made or no questions of fact raised.
21-29-9      Objections and proof countervailing answer introduced by applicant at trial.
21-29-10      Discretionary jury trial and postponement--Statement of question to be tried--Assessment of damages.
21-29-11      Verdict transmitted to court--Hearing on application.
21-29-12      Elements included in judgment.
21-29-13      Motion for new trial.
21-29-14      Fine for disobedience of peremptory writ--Imprisonment on persistent disobedience.

21-29-1. Power to issue writ--Purposes for which used.

The writ of mandamus may be issued by the Supreme and circuit courts, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.

Source: CCivP 1877, § 695; CL 1887, § 5517; RCCivP 1903, § 764; RC 1919, § 3006; SDC 1939 & Supp 1960, § 37.4501.

21-29-2. Writ issued when ordinary remedy inadequate--Application and affidavit.

The writ of mandamus must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon affidavit, upon the application of the party beneficially interested.

Source: CCivP 1877, § 696; CL 1887, § 5518; RCCivP 1903, § 765; RC 1919, § 3007; SDC 1939 & Supp 1960, § 37.4502.

21-29-3. Alternative and peremptory writs--Terms of writ.

The writ of mandamus may be either alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party, immediately upon the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court, at a specified time and place, why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done the command, must be omitted, and a return day inserted.

Source: CCivP 1877, § 697; CL 1887, § 5519; RCCivP 1903, § 766; RC 1919, § 3008; Supreme Court Rule 611, 1939; SDC 1939 & Supp 1960, § 37.4503.

21-29-4. Grant of writ on default prohibited.

The writ of mandamus cannot be granted by default. The case must be heard by the court, whether the adverse party appear or not.

Source: CCivP 1877, § 698; CL 1887, § 5520; RCCivP 1903, § 767; RC 1919, § 3009; Supreme Court Rule 611, 1939; SDC 1939 & Supp 1960, § 37.4503.

21-29-5. Alternative writ issued without notice--Minimum notice required for peremptory writ.

When the application for writ of mandamus to the court is made without notice to the adverse party, and the writ be allowed, the alternative writ must be first issued; but if the application be upon due notice, and the writ be allowed, the peremptory writ may be issued in the first instance. The notice of the application, when given, must be at least ten days.

Source: CCivP 1877, § 698; CL 1887, § 5520; RCCivP 1903, § 767; RC 1919, § 3009; Supreme Court Rule 611, 1939; SDC 1939 & Supp 1960, § 37.4503.

21-29-6. Service of writ--Service on majority of board.

The writ of mandamus must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the court. Service upon a majority of the members of any board or body is service upon the board or body, whether at the time of the service the board was in session or not.

Source: CCivP 1877, § 706; CL 1887, § 5528; RCCivP 1903, § 775; RC 1919, § 3017; SDC 1939 & Supp 1960, § 37.4504.

21-29-7. Answer to show cause against writ.

On the return of the alternative writ of mandamus, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may show cause by answer, under oath, made in the same manner as an answer to a complaint in a civil action.

Source: CCivP 1877, § 699; CL 1887, § 5521; RCCivP 1903, § 768; RC 1919, § 3010; Supreme Court Rule 612, 1939; SDC 1939 & Supp 1960, § 37.4505.

21-29-8. Hearing by court when no answer made or no questions of fact raised.

If no answer be made, the case must be heard on the papers of the applicant. If the answer raises only questions of law, or puts in issue only immaterial statements, not affecting the substantial rights of the parties, the court must proceed to hear, or fix a day for hearing the case.

Source: CCivP 1877, § 704; CL 1887, § 5526; RCCivP 1903, § 773; RC 1919, § 3015; Supreme Court Rule 613, 1939; SDC 1939 & Supp 1960, § 37.4506.

21-29-9. Objections and proof countervailing answer introduced by applicant at trial.

On the trial the applicant is not precluded by the answer from any valid objection to its sufficiency and may countervail it by proof, either in direct denial or by way of avoidance.

Source: CCivP 1877, § 701; CL 1887, § 5523; RCCivP 1903, § 770; RC 1919, § 3012; Supreme Court Rule 614, 1939; SDC 1939 & Supp 1960, § 37.4507.

21-29-10. Discretionary jury trial and postponement--Statement of question to be tried--Assessment of damages.

If an answer be made which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of which allegation the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the hearing until such trial can be had and the verdict certified to the court. The question to be tried must be distinctly stated in the order for trial, and the county must be designated in which the same shall be had. The order may also direct the jury to assess any damages which the applicant may have sustained, in case they find for him.

Source: CCivP 1877, § 700; CL 1887, § 5522; RCCivP 1903, § 769; RC 1919, § 3011; Supreme Court Rule 615, 1939; SDC 1939 & Supp 1960, § 37.4508.

21-29-11. Verdict transmitted to court--Hearing on application.

If no notice of a motion for a new trial be given or, if given, the motion be denied, the clerk, within five days after rendition of the verdict or denial of the motion, must transmit to the court in which the application for the writ is pending a certified copy of the verdict attached to the order of trial, after which either party may bring on the hearing on the application, upon reasonable notice to the adverse party.

Source: CCivP 1877, § 703; CL 1887, § 5525; RCCivP 1903, § 772; RC 1919, § 3014; Supreme Court Rule 616, 1939; SDC 1939 & Supp 1960, § 37.4509.

21-29-12. Elements included in judgment.

If judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury or as may be determined by the court or referee, upon a reference to be ordered, together with costs; and for such damages and costs execution may issue; and a peremptory mandamus must also be awarded without delay. If judgment shall be for the defendant, costs in his favor shall be taxed as a part thereof.

Source: CCivP 1877, § 705; CL 1887, § 5527; RCCivP 1903, § 774; RC 1919, § 3016; SDC 1939 & Supp 1960, § 37.4510.

21-29-13. Motion for new trial.

The motion for a new trial must be made in the court in which the issue of fact is made.

Source: CCivP 1877, § 702; CL 1887, § 5524; RCCivP 1903, § 771; RC 1919, § 3013; SDC 1939 & Supp 1960, § 37.4511.

21-29-14. Fine for disobedience of peremptory writ--Imprisonment on persistent disobedience.

When a peremptory mandamus has been issued and directed to any inferior tribunal, corporation, board, or person, if it appear to the court that any member of such tribunal, corporation, board, or any person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ.

Source: CCivP 1877, § 707; CL 1887, § 5529; RCCivP 1903, § 776; RC 1919, § 3018; SDC 1939 & Supp 1960, § 37.4512.