When the application to the court or district judge is made without notice to the adverse party, and the writ is allowed, the alternative shall be first issued; but if the application be upon due notice, and the writ is allowed, the peremptory may be issued in the first instance. The notice of the application, when given, shall be at least 10 days. The writ shall not be granted by default. The case shall be heard by the court, whether the adverse party appear or not.
[1911 CPA § 756; RL § 5698; NCL § 9245]
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