upon which the demurrer to the answer was sustained and the answer dismissed, a peremptory writ did issue in due form, directed to the defendant in this proceeding, and which, among other things, recites that it appears by affidavit “and by the evidence adduced in said action on the trial thereof this day,” etc. The concluding and mandatory part of the peremptory writ is as follows: “Therefore we do cammand you that immediately after the receipt of this writ, upon the payment or tender of your lawful fees therefor, you issue wn execution in favor of the said plaintiff and against the said defendant in said action for the restitution and possession of said premisses. Dated January 10th, 1891. W. S. Lauder, Judge.” An exception was allowed as follows: “To the foregoing order the defendant by his attorney excepts. W. S. Lauder, Judge.” Service of the above was admitted by defendant’s counsel on January 10, 1891. No appeal to this court has been taken from the order sustaining the demurrer and dismissing the answer, or from the peremptory writ. A peremptory writ does not regularly issue in a mandamus proceeding until the court, by an order of judgment, awards such writ. The practice in New York is indicated in 5 Wait, Pr. 591, also 594-596. Our statute contemplates that a judgment shall be entered. § 5527, Comp. Laws. See, also, Hayne, New Trial & App. 981; and as to appeals in mandamus, see § 5536, Comp. Laws. In this proceeding; as has been said, no order or judgment was made or entered in terms awarding the peremptory writ. The writ issued at once after the order was made sustaining the demurrer and dismissing the answer. In strictness and in fact, though not in terms, the order sustaining the demurrer was in this case the final order in the proceeding, and the court below assumed that no further order or judgment was necessary to award the writ. This order, under the circumstances, liberally construed, would be an appealable order. It sustained a demurrer, and in this proceeding was, in effect, “a final order affecting a substantial right made in a special proceeding.” Subdivision 2, 3, § 24, c. 120, Laws 1891; State v. Webber, 31 Minn. 211, 17 N. W. Rep. 339, The peremptory writ does in a sense embody an order, and also an adjudication in the nature of a judgment,
