manner. Section 5520 of the Comp. Laws contemplates that there may be a trial of matters of fact upon the hearing, based upon notice, instead of upon an alternative writ. It provides that when the application is upon notice the peremptory writ may be issued in the first instance. But the peremptory writ will never issue so long as a material fact is in controversy; and if it may issue in the first instance, in such a case, it must be that the court has power, upon the hearing based upon notice, to try and determine all disputed matters of fact. There is no absolute right toa jury trial. The court, in its discretion, may order the issues to be tried before a jury. Section 5522, Comp. Laws.
As we are of opinion that the parties submitted the case on the merits, and that, therefore, the relator asked for a peremptory writ, the question arises whether the court was bound, in any view of the case, to award such peremptory writ. In deciding this question we must assume that the trial judge found in favor of the defendant any and all facts necessary to support his decision, of which there was evidence before him. The county warrant which the relator is seeking to compel the defendant to attest and certify as auditor was ordered to be drawn, by resolution of the board, in payment for jail cells and a corridor furnished during the year 1891 by the relator to Eddy County, and put in place by the relator, in the jail of such county, under a contract made in 1891 with the board of county commissioners of such county to pay therefor the sum of $1,785. In the answer it is alleged “that neither said sum of $1,785 alleged in the petition, nor any part of said sum, could be paid out of the current revenue of said county for said year 1891; that to pay said sum it was necessary to create an indebtedness.” And in the defendant’s affidavit used upon the hearing it is stated “that the current income of Eddy County in the year of 1891 was not large enough to pay the warrants drawn in that year, and the said county was at that time owing a larger sum of money on unpaid county warrants than one year’s revenue of said county; that there was no money in the county treasury, then, out of which said so called
