RULE 33. When a peremptory writ of mandate is awarded it shall issue immediately, unless stayed special order of the Court. by After the RULE 34. The proof of service of notice and affidavits, or writ and affidavits, shall be the same as the proof of service of summons in civil cases. return day has passed, upon filing due proof of service of notice and affidavits in an application for a peremptory mandate, or of the affidavits and alternative writ, when the alternative writ has been issued, as provided by these rules, and that no answer has been served and filed as herein provided; upon application of the moving party, the Clerk shall place the cause upon the calendar for hearing, on the first day of the term, or such other day as may be specially appointed by the Court, upon the papers of the applicant; and the application shall be heard upon such papers, unless the Court, upon motion on notice and affidavits, shall relieve the respondent from his default, on the ground of mistake, inadvertence, surprise, or excusable neglect, and permit an answer to be filed. of appeal stipulation. RULE 35. An appeal or writ of error may be dis- Dismissal missed at any time, upon and in accordance with the on written stipulation of the attorneys of record of the respective parties; and upon and in accordance with such stipulation, the Clerk shall enter such dismissal, and the remittitur shall issue thereon in accordance with the terms of said stipulation. RULE 36. When the inspection of an original paper which was offered in evidence in the Court below is shown to be necessary to a correct decision of the appeal, the Court may order the Clerk of the Court below to transmit such original paper, if in his possession, to the Clerk of this Court; and if such paper be How entered by Clerk. Original be required to be produced, when and by whom. Application for prerogative writs to and the real parties in interest. in the possession of a party to the action, he may produce the same on the hearing of the cause, or he may, upon motion and notice of the adverse party, be required to produce such paper on the hearing of the cause; and in default thereof the Court will intend the paper to be in all respects as alleged by the opposite party. RULE 37. If any application made to the Court for a writ of mandamus, certiorari, prohibition, proceshow what, dendo, or for any prerogative writ to be issued in the exercise of its original jurisdiction, and for which an application might have been lawfully made to some other Court in the first instance, the affidavit or petition shall, in addition to the necessary matter requisite by the rules of law to support the application, also set forth the circumstances which, in the opinion of the applicant, render it proper that the writ should issue originally from this Court, and not from such other Court the sufficiency or insufficiency of which cir cumstances so set forth in that behalf will be determined by the Court in awarding or refusing the application. In case any Court, Judge, or other officer, or any Board or other tribunal, in the discharge of duties of a public character, be named in the application as respondent, the affidavit or petition shall also disclose the name or names of the real party or parties, if any, in interest, or whose interest would be directly affected by the proceedings, and in such case it shall be the duty of the applicant obtaining an order for any such writ to serve or cause to be served upon such party or parties in interest a true copy of the affidavit or petition and of the writ issued thereon, in like manner as the same is required to be served upon the respondent named in the application and proceedings, and to produce and file in the office of the Clerk of this Court the like evidence of such service. . It is ordered that the foregoing rules be and the same are hereby adopted; that they shall take effect on the first Monday of January, eighteen hundred and seventy-three; and that thereupon all former rules be abrogated. OCTOBER 25th, 1872. WALLACE, C. J., CROCKETT, J., RHODES, J BELCHER, J. ANALYSIS OF THE SECTION 2. When this Code takes effect....... 3. Not retroactive............ 4. Rule of construction of this Code..................................... 5. Provisions similar to existing laws, how construed.. 6. Tenure of offices preserved......... 7. Construction of repeal as to certain officers 8. Actions, etc., not affected by this Code.......... 12. Computation of time........... 13. Certain acts not to be done on holidays......... |