Ipes v. Board of Fire CommissionersIpes v. Board of Fire Commissioners
delivered the opinion of the Court.
A widow, whose petition for a writ of mandamus to require the Board of Fire Commissioners of Baltimore City (Board) to pay her pension benefits for the death of her husband was dismissed, appeals.
Peter H. Ipes, the appellant’s husband, was employed as an engineer by the Fire Department of Baltimore City for some years. On June 7, 1949, after becoming ill at his place of employment, he was admitted to a hospital, where he died
There is one crucial factual controversy between the parties: the appellant claims her husband’s death was due to a heat stroke while working under severe strain in a very high temрerature, while the appellees contend that the deceased suffered a sudden rupture of a large blood vessel in the brain, at a time when he was performing his routine duties. Thе cause of his death is a vital factor as to whether or not the appellant is, or ever was, entitled to a pension under Section 80.
At the time of the hearing below, Dr. Lloyd, who was the Fire Department’s physician at the time of the death of the appellant’s deceased, and who had treated him immediately after he had been admitted to the hospital in Junе of 1949, had died. One member of the Board, as constituted at the time of the hearing before it, had also passed away, and the personnel employed by the Board, including its Executive Secretary, had changed since the initial hearing.
Although the defendants made no mention of laches in their answer, the trial judge, of his own volition, decided the appellant had been guilty of long delay, which constituted laches, and dismissed her petition. We must, therefore, answer this question: May the trial court in a mandamus proceeding raise the question of laches, sua sponte, when the defendants fail to plead the defense in their answer?
Before resolving this question, we shall consider the appellees’ motion to dismiss the appeal. The appеllant, inadvertently, omitted to have printed in her record extract the trial judge’s opinion; and also failed to have any of the evidence included therein. The appelleеs moved for a dismissal
In Mаryland, mandamus is a writ in the nature of a prerogative writ, and is an extraordinary remedy. The writ is issued by the law courts. Code (1957), Article 60; Section 1. It is a remedy that it is based upon reasons of justice аnd public policy to preserve peace, order and good government, and, although the writ is issued by the law courts, many courts, including this one, and text-writers have stated that mandamus may bе compared to a bill in equity for specific performance. High,
Extraordinary Legal Remedies
(3rd Ed.), Section 1;
Booze v. Humbird,
Thаt laches is a proper ground for refusing to issue a writ of mandamus seems to be a proposition of almost universal recognition.
George’s Creek C. & I. Co. v. Co. Com.,
The provision quoted from Rule 1240 b 2 seems to have first come into the law of this State (in slightly differеnt terms) by Section 3 of Chapter 285 of the Acts of 1858 (presently Section 3 of Article 60 of the Code [1957]). At common law the pleading and practice in mandamus proceedings were very tеdious and technical. Upon the filing of a petition which set forth sufficient facts, the court directed the writ to issue. This writ commanded the respondent to do the thing ordered,
or
to show cause, by a time certain, why he should not be required to do it. This was termed an alternative writ of mandamus; and, if the respondent wished to contest the matter, he either moved to quash the writ (for defeсts either of form or substance), or replied to it. This reply was called a “return.” Upon the sufficiency of this return, the relator’s right to the writ depended. In this return, the respondent was obliged to sеt forth with great care, certainty and precision the facts upon which he relied to defeat the petition, and on the case thus made the court decided the matter. The petitioner, or relator, was not allowed to traverse the . facts stated in the return, and, if matters stated therein were not true, the only remedy of the petitioner was an action оn the case for a false return; and then, after a verdict and judgment for him in such case, the application for the mandamus could be renewed, and the writ was generally issued. Under such
The above mentioned statutes did not altеr the nature or character of the writ, nor did they change the legal principles upon which the court acts in issuing or refusing to issue it.
Weber v. Zimmerman, supra,
Having made the determination that the trial judge, in his discretion, could raise the question of laches, it hardly seems necessary to repeat the facts, in order to show that the discretion was exercised soundly. If the appellant had a cause of action, it arose some ten years before the trial; suit was not instituted thereon for about six years and then the litigation was permitted to linger for four years; in the meantime, a most important and, perhaps, vital witness had died and other changes had taken place. Without further elaboration, it seems obvious that under our previous decisions this conduct on the part of the appellant constituted laches.
Akin v. Evans, Exec.,
Motion to dismiss appeal denied. Order affirmed. The appellant to pay the costs.
Notes
. Harwood v. Marshall,