| Md. | Apr 9, 1867
delivered the opinion of this Court.
The appellant, on the 17th of July, 1866, filed his petition in the Circuit .Court for Alleghany county, for a writ of mandamus, directed to the appellee, commanding him to surrender to the appellant the office of Mayor of the City of Cumberland, and to yield up to him its emoluments, etc. The appellee appeared and filed his answer, showing cause why the mandamus should not be issued as prayed. The petitioner traversed some of the averments of the answer, and to others he demurred. The demurrer being overruled, judgment was entered for the respondent on the demurrer, to have the same effect
The appeal was entered, and since the record was transmitted, the appellant has died.
The personal representative of the appellant prays leave to appear and prosecute the appeal; the appellee moves the Court to enter the same “ abated.”
In support of the claim to appear and prosecute, it is urged that Art. 2, sec. 9, of the Code enacts, that “ No case pending in the Court of Appeals shall abate by the death of either of the parties to such appeal or writ of error, if the heir, executor, or other proper person to be made a party shall, at the first or second term succeeding the death of such party, make the necessary suggestion, and appear to such appeal or writ of error for the purpose • of prosecuting or defending the same.”' To show that the executor or administrator is the proper person, it is argued that in cases of mandamus, where a verdict is found for the petitioner, or judgment is given for him on demurrer, the petitioner is entitled to recover his damages and costs as he might have done in an action on the case for a false return ; (vide Code Pub. Gen. Laws, Art. 59, sec. 7,) and although the prayer of the petition cannot be gratiified; by installing the petitioner into office, yet his right to the office should be decided, that he may recover his costs and damages. The appellee insists, the main object of the mandamus being to induct the petitioner, and eject the respondent from office, that when the former becomes impossible, the right to the writ ceases, and all its incidents fall with it, as the accessory follows the principal.
The writ of mandamus is not a writ of right granted as of course, “ but only at the discretion of the Court, to whom the application is made ; and this discretion will not be exercised in favor of applicants, unless some just or useful purpose may be answered by the writ. Angel & Ames on Cor., sec. 698 ; State vs. Graves et al., 19 Md.
“ In case the verdict shall be found for the petitioner, or if the Court, upon hearing, determine in favor of the petitioner, or judgment be given for him upon demurrer, or for want of a plea, such petitioner shall thereupon recover his damages and costs, as he might have done in an action on the case for a false return.” Code of Pub. Gen. Laws, Art. 59, sec. 7.
The claim for costs and damages is inchoate and contingent upon events which in this case have not occurred. As much so as any unliquidated claim for a personal injury which depends upon the rendition of a judgment, before such claim could be assets in the hands of his personal representative.
Before the traverse to the answer was substituted for an action on a false return, the damages claimed in such action could not have been considered personal assets before judgment recovered. So, under the proceedings now conducted, on the traverse or demurrer to the answer, no claim to damages can arise until they are consummated by final judgment. There being no assets, there can be no proper personal representative to claim them in t-his stage of the cause.
The 9th section of the 2d Article of the Code has, therefore, no application to such a case as the present, as that presupposes a case, capable of being represented by the heir, executor or other proper person.
If it were proper to entertain a suit for a purpose entirely incidental, the judgment in this case being for the respondent, the presumption of law is, that it is correct, and if affirmed, no such claim as that to damages
Gase abated.