People ex rel. Ripp v. Town Board

Some objections are urged by the defendants to the alternative writ herein which are not applicable upon the argument to sustain their demurrer. The defendants cannot avail themselves of the absence of the ordinary form whereby the writ is issued in the name of the People, even if material. The proper remedy for that was by motion before they had appeared generally in the action and demurred.

Notwithstanding the allegation in the writ and in the relator’s affidavit that the town board did not consider his bills upon the merits, I think the other, facts stated therein show that the town board did so consider and pass upon them upon the merits,, allowing them in part and rejecting them in part. Therefore, so far as the writ seeks to compel the town hoard to assemble and pass upon his claims upon the merits it is demurrable. From the facts as stated, however, the town board did not pass upon the claims and make *470the certificate as required by law. Section 162, chap. 569, Laws of 1890. It very likely may be material to relator that they should be so passed upon. In'this respect, therefore, a good ground is-presented for.the issuance.of the writ, and to this extent the demurrer is overruled.

. The defendants have leave to make a return to the writ at any time within twenty days upon payment of fifteen dollars costs.

Ordered accordingly.