On Petition for Rehearing
By the Court,
Coleman, J. :In the petition for a rehearing, counsel for petitioner takes exception to the comment made in the last paragraph of the opinion of the court in reference to the case, of State v. McCullough, 3 Nev. 202, and expresses regret that time did not permit of an oral argument. It is our observation that it is much better for attorneys to clearly and concisely express their views in their written briefs. Besides, it is the duty of attorneys to state their points and arguments in their written briefs, that opposing counsel may have an opportunity to answer.
It is now contended that the case mentioned was cited as an authority to the point that there should have been an answer to the petition in the case. We could never have presumed so, either from what was said in the brief or from its position therein. So far as appears from the order of arrangement in the brief of the points presented, that question has been fully covered, and the matter of estoppel'taken up, and two or three pages devoted to it; the brief concluding with the quotation.
It is now insisted that we erred in our former statement of the law as to the necessity of a formal answer to the petition, and our attention is directed to the case of Piper v. Gracey, 11 Nev. 223, to support that view. In this connection, it may be observed that the court in that case correctly stated that the proceedings in mandamus were controlled by the express provisions of the civil practice act of this state, as it pertained to pleadings in civil actions. A similar provision is incorporated in our present code. Rev. *207Laws, 5699. We do not see, however, what that has to do with prohibition proceedings under our code provision relative thereto as it now stands. Section 767 of the civil code (Rev. Laws, 5709) provides that the writ of prohibition issues upon affidavit. It says nothing about its issuing upon a complaint such as is contemplated in an ordinary civil action. The next section merely provides that the party to whom the writ is directed shall “show cause” why he should not be absolutely restrained from further proceeding. It does not say that cause shall be shown by an answer, or in what manner it shall be shown.
It is evident that it was the intention of the legislature that the return to the writ might be informal in character. It is the substance of the return that is of consequence — not its form. But, had the code provided that cause should be shown by answer, we think the return in this case sufficient. It is not necessary that an answer, even in a civil suit, shall either formally admit or deny the allegations of a complaint. If it sets up affirmatively matter which in law defeats the cause of action pleaded in the complaint, it is good. The return in this matter does that.
Counsel renews his objections to the position taken by the court in adhering to the view expressed in State v. Kelso, 46 Nev. 128, 208 Pac. 424, in which we followed the rule enunciated in Godchaux v. Carpenter, 19 Nev. 415, 15 Pac. 140. The line of reasoning urged upon us by counsel is not without force, but it was rejected by this court in the Carpenter case, supra, which case is in line with the overwhelming weight of authority, as shown-by the citations in 15 C. J. 466.
As to the question of estoppel, we are satisfied with what was said in our former opinion.
It is ordered that the petition for rehearing be denied.
Ducker, J.: I concur. Sanders, C. J., did not participate.