#### State, ex rel. v. McDiarmid.

Pbacticb — Buie to show causa— Rule to show cause against particular relief sought, is obtained, on motion, ex-parta, and the time for the party to answer is governed entirely by the circumstances surrounding the case, and is left within the sound discretion of the court granting the same.

Motion for Writ of Quo Warranto.

Montgomery, Attorney General, Wilshire £ Cabiente, and Warwick, for plaintiff.

Yonley, E. W. Gantt and Benjamin Barnes, for defendant.

Quo Warranto.

BeNNett, J.

On the 81st day of May, 1871, the attorney general presented his relation, in this court, against George W. McDiarmid, and, in the name of the State, asks the consideration of the court, as to matters and things therein alleged, and that a writ of quo warranto be awarded against said McDiarmid.

On the 5th day of June, 1871, on the motion of the attorney general, a rule issued against the defendant, returnable upon the 12th day of June, 1871, to show cause why said information should not be filed, and a writ of quo warranto issue against him.

■ On the 12th day of June, defendant, without entering personal appearance, filed a plea in abatement, and says he is not bound to notice or answer this proceeding during the present term of this court, but is, by law, entitled to have time granted him until the first day of the next regular term of this court.

The only question presented by the plea is, whether a person, against whom a rule has been issued, is entitled to the same time,for answering, as in other proceedings; we think not.

A rule to show cause, against the particular relief sought, is *481obtained on motion, ex-parte; tbe time for the party to answer is governed by the circumstances surrounding the case, and is left within the sound discretion of the court granting the same. It is merely to give him an opportunity to show, if he can, such a state of facts, that, at least, he has, prima facia, violated no law, nor that the further process of the court should issue against him. His appearance to answer a rule does not necessarily determine any right, but gives the tribunal, which issues it, some facts upon which to say whether he shall be required to further answer its mandates.

Seeing no cause to sustain the plea the same is hereby overruled. The matters and things alleged in the relation, being deemed sufficient, the writ of quo warranto will issue.

Gregg; J.,

dissenting says:

I am still of the opinion that where there' is no demand for a superintending control over another court, that some inferior tribunal of the State ought to issue these original writs.