
    SHERER v. SUPERIOR COURT.
    No. 15,232;
    
    December 7, 1892.
    31 Pac. 565.
    Mandamus—Pleading-—Presumption,—Where a Petition for a writ of mandate, and the answer of the court, are submitted without evidence, the answer must be taken as true.
    Application by Sherer for a writ of mandate commanding the superior court to proceed with the trial of a cause in which petitioner is interested. Application denied.
    Spencer & Raker, C. C. MeClaskey and Henry N. Clement for petitioner; Shinn & Shinn for respondent.
   DE HAVEN, J.

This is an application for a writ of mandate commanding the superior court of Lassen county to proceed with the trial of a certain action alleged in the petition to be pending in that court, and which action it is further alleged that court refuses to set for trial. The petition herein was filed November 4, 1892, and the answer of the judge of the superior court, made thereto, shows that upon September 16, 1892, final judgment in the action referred to in the petition was rendered by the said superior court. This, if true, coifipletely negatives the case made in the petition, and, as the matter was submitted to us without any evidence, and upon the petition and answer alone, the averments of the answer are to be taken as true. Application for writ denied.

We concur: Beatty, C. J.; Harrison, J.; McFarland, J.; Sharpstein, J.  