Opinion of the Court-McCarran, C. J. then and there directed the clerk to enter judgment for the respondent, plaintiff and petitioner in the court below, in accordance with the relief prayed for. The refusal of the court to permit the filing of an answer to the petition for mandamus is assigned as error, and together with other assignments comes here in the specification of errors. We shall conclude the matter with a consideration of this assignment, inasmuch as we deem the action of the trial court in refusing to permit appellant to file an answer to be error. Chapter 73 of our civil practice act, being section 752 to section 771 of the act, inclusive (Rev. Laws, 56945713) is devoted entirely to proceedings and practice in mandamus. The statute declares the writ of mandamus may be denominated a writ of mandate. Section 753 designates in what cases the writ may issue. Section 756 prescribes: "When the application to the court or district judge is made without notice to the adverse party, and the writ is allowed, the alternative shall be first issued; but if the application be upon due notice, and the writ is allowed, the peremptory may be issued in the first instance. The notice of the application, when given, shall be at least ten days. The writ shall not be granted by default. The case shall be heard by the court whether the adverse party appear or not." Section 757 prescribes: "On the return day of the alternative, or the day on which the application of the writ is noticed, or such further day as the court or district judge issuing the writ may allow, the party on whom the writ or notice shall have been served may show cause by answer under oath, made in the same manner as an answer to a complaint in a civil action." Section 758 provides: "If an answer is made, which raises a question as to matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of the allegation of which the application for a writ is based, the court Opinion of the Court-McCarran, C. J. may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be had and the verdict certified to the court. The question to be tried shall be distinctly stated in the order for trial, and the county shall 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." Section 762 provides: "If no answer be made, the case shall be heard on the papers of the applicant. If an answer be made which does not raise a question such as is mentioned in section 758, but only such matters as may be explained or avoided by a reply, the court may, in its discretion, grant time for replying. If the answer, or answer and reply, raise only questions of law, or put in issue immaterial statements, not affecting the substantial rights of the parties, the court shall proceed to hear, or fix a day for hearing, the argument of the case." Section 770 of the civil practice act provides: "Except as otherwise provided in the three chapters next preceding [chapter 72, Certiorari; chapter 73, Mandamus; chapter 74, Prohibition], the provisions of this code relative to civil actions in the district courts are applicable to and constitute the rules of practice in the proceedings mentioned in those chapters." It will be seen that the proceedings in mandamus constitute a part of our civil practice act. Thus the whole proceeding, in so far as there are statutory provisions, is removed from the rule of practice known to the common law and takes its initiatory and every successive step directly from statutory mandate and prescription. In the case of State of Nevada ex rel. Curtis v. McCullough, 3 Nev. 202, this court took cognizance of the civil practice act as being applicable to proceedings in mandamus. In the case of State of Nevada v. Gracey, 11 Nev. 223, referring to the case of Curtis v. McCullough, this court said: "But whether it is the affidavit or the writ which the Opinion of the Court-McCarran, C. J. statute requires to be answered, there can be no doubt that, for the purposes of this motion, the affidavit performs the office of a complaint, and the sufficiency thereof is alone to be considered." The court in that instance regarded the question before it as turning on the affidavit, the same to be considered in the nature of a complaint in an ordinary civil action and tested by the rule prescribed by the practice act. In some jurisdictions, proceedings in mandamus have been regarded as of a criminal nature; indeed, such was the central thought of those upon whom the administration of the writ devolved in the early making of the common law. In other jurisdictions, it has been regarded as a special proceeding; but this court, in the case of State v. Gracey, supra, laid down the emphatic declaration that proceeding by mandamus is a civil remedy, and has all the qualities and attributes of a civil action, and applies solely for the protection of civil rights. In the case of State v. Jumbo Ext. M. Co., 30 Nev. 192, 94 Pac. 74, 133 Am. St. Rep. 715, 16 Ann. Cas. 896, this court, referring to the practice to which it gave sanction here, held that while there may be little difference as to the manner or mode of raising the issues, the better practice was to raise objections to the petition by way of demurrer or answer. The proceedings in mandamus, whatever they may have been at common law, have become more expeditious and uniform, and are now in keeping with the ordinary personal actions and the prescribed civil practice, and in most jurisdictions we observe that mandamus proceedings are governed by the same general principles, in so far as pleadings are concerned, or the manner or mode of joining issue, as those prescribed for civil actions generally. In High's Extraordinary Legal Remedies, p. 329, it is stated: "In this country, as well as in England, proceedings in mandamus are now usually regarded as in the nature of an action, to which the parties may plead as in other actions." Opinion of the Court-McCarran, C. J. A petition for an alternative writ of mandamus, or a complaint on which such writ is issued, is in most instances an ex parte proceeding. To say that the party to whom the writ is directed should be deprived of a right to test by demurrer the sufficiency of the petition or complaint upon which the writ was issued would be in our judgment to adopt a rather arbitrary view of the whole proceeding governing mandamus. Courts generally have adopted the broader and more liberal view. In the case of Swan v. Gray, 44 Miss. 393, the court had before it the identical question here presented. There, however, no statutory provisions appear for the regulation of proceeding in mandamus. The court, after commenting on the force and effect of the several legal steps in a mandamus proceeding, held that it was error to deny the respondent the right to answer after his demurrer to the sufficiency of the petition had been overruled. There, even in the absence of statutory provision, the court held: "But, if the demurrer be overruled, then the defendant must make return, denying the allegations of the writ, or setting up new matter constituting a defense to the relator's claim." In the case of State ex rel. Commissioners of Jefferson County, 11 Kan. 66, the Supreme Court of Kansas, after referring to the practice at common law and under the English statute (9 Anne, c. 20), held that the alternative writ is now not merely a writ as formerly, but is a pleading, and the return is also a pleading, the issues being made up of the writ and the return, and the trial may be had on such issues, and judgment rendered for the plaintiff or for the defendant, the same as in any other civil action. There the court held, as did this court in the case of Curtis v. McCullough, supra, that the whole proceeding was in the nature of a civil action. In the case of State ex rel. Kelly v. Mayor and Aldermen of the City of Paterson, 35 N. J. Law, 196, the Supreme Court of New Jersey, in viewing the question there presented under conditions not unlike those in the Opinion of the Court-McCarran, C. J. matter at bar, laid stress on the view that the object of the return was to give the opposing party a full hearing on the merits before a judgment should be pronounced, which judgment would be peremptory in its nature. In the case of State ex rel. Green Bay & M. R. R. Co., v. Jennings, 56 Wis. 113, 14 N. W. 28, the Supreme Court of Wisconsin held that a proceeding in mandamus was to all intents and purposes a civil action within the meaning of the statute of Wisconsin, and being such, the petition, as well as the return, was to be tested as to form and sufficiency by the same rules which prevail in other civil actions. In the case of Union Oil Co. v. Campbell, 48 La. Ann. 1350, 20 South. 1007, the conditions under which the proceedings came to the supreme court were identical to those presented in the case at bar. There, a demurrer having been overruled, the respondent filed his The relators contended there, as here, that, the respondent having filed an exception (tantamount to the demurrer here), they were precluded from setting up any ground of defense on the merits. The court held the position untenable. answer. With a view to establishing a proper practice, the Supreme Court of New Jersey, in the case of State ex rel. Hopper et al. v. Board of Freeholders, 52 N. J. Law, 313, 19 Atl. 383, said: "As the alternative mandamus takes the place of a declaration in these proceedings, the same practice should be followed. If a demurring defendant shows a real ground on which the command of the alternative writ ought not to be made peremptory, which he can only set up by return, he ought to be permitted to withdraw his demurrer, and make return on like terms as to costs." In the case of Bear v. Commissioners, 124 N. C. 204, 32 S. E. 558, 70 Am. St. Rep. 586, it was held that mandamus being in the nature of a civil action, the pleadings and practice should be the same as those prescribed for in conducting civil actions. |