
    Smith v. Powell et al.
    1. Practice: pleading over: waiver of error. Pleading over, after an adverse ruling upon a motion, is a waiver of the error, if any, in such ruling.
    2. Certiorari: school directors: illegal acts of. Certiorari is a proper remedy where the board of directors of a district township direct their secretary not to certify for collection a tax voted by the electors of the district.
    
      Appeal from, Gass Circuit Gourt.
    
    Tuesday, December 14.
    The defendants constitute the board of directors of the district township of Brighton, and the relief asked in the petition was that a writ of certiorari issue commanding them to certify to the Circuit Court certain proceedings of said board, to the end certain illegal acts of the board might be corrected. The writ issued, and at the final hearing the relief asked was granted. The defendants appeal.
    
      Phelps d¡ De Lano, for appellants.
    
      Ctvrhis & Wedgewood and John W. Scott, for appellee. •
   Seevers, J.

— I. The defendants moved the court to “ dism*ss ^ie cause arl^ supersede the writ” upon seYeral grounds, among which was that the “ pétition was not verified.”

The motion was overruled. It is now insisted such ruling constitutes reversible error. Tbe only ground relied on in argument is that above stated.

After the motion was overruled tbe defendants filed an answer, and there was,a trial on the merits. Under repeated decisions of this court tbe supposed error was waived.

II. At tbe annual meeting of tbe electors of tbe district township in March, 1880, they voted a tax should be levied on taxable property of tbe district township sufficient to raise tbe sum of $3,000, for tbe pnrp0se 0f erecting a shool-house in sub-district No. five.

It was tbe duty of tbe defendants to have “ caused tbe secretary” to certify said tax to tbe board of supervisors. Instead of so doing they directed tbe secretary not to do so. In so doing they exceeded their jurisdiction, and did an illegal act.

It is insisted manda'rrms, and not certiorari, was tbe proper remedy to correct tbe alleged wrong. Mandarrms compels tbe inferior tribunal, board or person to act, or perform a duty enjoined. Code, § 3373.

Certiorari lies when some act has been done by an inferior tribunal, board or officer in excess of their jurisdiction, or is otherwise illegal. Code, § 3216.

Neither writ can issue when there is any other “plain, speedy and adequate remedy.” Code, § § 3216, 3376.

It is clear, we think, tbe illegal direction given by tbe defendants to tbe secretary could not have been set aside if an action of mandamus bad been instituted. It is possible tbe order of tbe defendants might have been ignored, and they compelled to perform tbe duty enjoined by statute. Conceding this to be so, tbe plaintiff also bad tbe right, we think, to have tbe illegal action of tbe defendants set aside. As no appeal therefrom is allowed, tbe only remedy by which this could be accomplished was certiorari.

It is also insisted tbe action of tbe defendants was ministerial, and not judicial, and, therefore, certiorari is not tbe proper remedy. It seems to us to do tire opposite of that which is enjoined as a duty by statute requires the exercise of judicial functions of no common order. The court not only set aside the direction given the secretary, but ordered the defendants to cause him to certify the tax to the board of supervisors.

We are not called on to determine whether the last part of the judgment of the Circuit Court is correct or not, because we do not understand such claim was made in the court below, but if it was it is not made here.

Affirmed.  