If no answer be made, a peremptory mandamus must be allowed against the defendant. If an answer be made containing new matter, the same shall not in any respect conclude the plaintiff, who may, on the trial or other proceeding, avail himself of any valid objection to its sufficiency, or may countervail it by proof, either in direct denial or by way of avoidance.
§ 25-2163.Peremptory writ; when issued; failure to answer, effect; pleading new matter, effect.
Article 21: Special Proceedings and Actions · Not amended since original codification · Last verified July 22, 2026
In one sentenceThis section provides that a peremptory writ of mandamus issues automatically against a defendant who files no answer, and that an answer raising new matter does not bind the plaintiff, who may contest its sufficiency or disprove it at trial through denial or evidence in avoidance.
Full Text of § 25-2163
Source
R.S.1867, Code § 652, p. 508; R.S.1913, § 8278; C.S.1922, § 9231; C.S.1929, § 20-2163; R.S.1943, § 25-2163.
Plain-English Summary
Section 25-2163 tells a defendant what happens on both sides of the choice described in section 25-2162. Silence has a specific consequence: if the defendant files no answer at all, the court must allow a peremptory writ, the final order commanding performance of the duty at issue. There is no additional round of argument before that happens.
Filing an answer avoids that automatic result, but it does not settle the case. If the answer raises new matter — facts beyond a bare denial of the complaint — the plaintiff is not bound to accept it. At trial or in other proceedings, the plaintiff may challenge whether the new matter is legally sufficient, or may counter it with proof, either by directly denying the facts asserted or by showing circumstances that avoid their legal effect.
Frequently Asked Questions
What happens if a mandamus defendant never files an answer to the writ?
The court must allow a peremptory writ against the defendant.
Does filing an answer guarantee the defendant a favorable outcome?
No. If the answer contains new matter, that matter does not conclude the plaintiff, who may still contest it at trial.
What can the plaintiff do if the defendant’s answer raises new matter?
Object to its sufficiency as a legal matter, or countervail it by proof, either through direct denial or by way of avoidance.
What does “new matter” in an answer mean here?
Facts or defenses the answer raises beyond a plain denial of the complaint’s allegations.
How does a peremptory writ differ from the earlier alternative writ?
The alternative writ gives the defendant a chance to answer; the peremptory writ is the final compelling order that issues once that chance is forfeited by silence.
Must the plaintiff accept the defendant’s account of new facts as true?
No. The plaintiff may deny those facts or offer proof against them at trial.
Source & verification. Section text and the amendment-history citation are
reproduced verbatim from the Nebraska Legislature, Revisor of Statutes, enacted by the
Nebraska Legislature. Last verified July 22, 2026. ·
Official source
Also known as: peremptory writ of mandamus nebraskafailure to answer mandamus writnew matter in mandamus answerdefault mandamus judgment nebraskacontesting mandamus answer nebraska