Booze v. Humbird

• Decision Date: 09 April 1867
• Citation: 27 Md. 1
• Parties: ANDREW J. BOOZE v. JOHN HUMBIRD.
• Court: Maryland Court of Appeals

27 Md. 1

ANDREW J. BOOZE v. JOHN HUMBIRD.

Court of Appeals of Maryland

April 9, 1867

APPEAL from the Circuit Court for Allegany County.

This was an application by the appellant for a mandamus, to compel the appellee to surrender to him the office of Mayor of the City of Cumberland. The appellant claimed that none but registered voters had a right to vote at the municipal election, and that he had received a majority of such votes. The appellee denied that the appellant had received such majority, and that the registry law, being the Act of 1865, ch. 174, applied to said election; and claimed that he himself had received a majority of the legal votes. The appellant demurred to that part of the appellee's answer, which denied the application of the registry law to the municipal election, and the Court (PEARRE, J.) overruled the demurrer, and decided that the registry law did not apply. By agreement, judgment was entered as if on verdict in favor of the appellee, and this appeal was taken from the decision of the Court on the demurrer. After the appeal was taken, the appellant died, and his executors applied to be allowed to prosecute the appeal. That part of the argument of counsel directed to the consideration of questions other than the one decided by this Court, has been omitted.

The cause was argued before BOWIE, C.J., BARTOL, WEISEL and CRAIN, J.

George A. Thruston and William J. Read, for the appellant, argued:

That inasmuch as the case was pending in this Court at the time of the death of the appellant, it did not abate thereby, but that the executor was entitled to come in and make the necessary suggestion, enter his appearance, and prosecute the case. Code of Public General Laws, Article 2, secs. 9, 10, 11.

J. H Gordon, William Walsh and Thomas J. McKaig, for the appellee contended:

That by the death of the appellant the appeal abated.

Article 2, sec. 9, of the Code of Public General Laws, prevents the abatement of cases pending in this Court, "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 the appeal or writ of error for the purpose of prosecuting or defending the same." This law assumes that the case is such that there is some proper party to represent and succeed to the right or matter in litigation. If the case relate to the realty, the heir or devisee, if to the personalty, the executor or administrator would be the proper party. But if the case relate to neither real nor personal estate, there is no " proper person to be made a party. " Does the right to the office of Mayor of the City of Cumberland devolve on the executor of the deceased Mayor? Does it constitute personal assets of the deceased Mayor, to be administered on, converted into money and paid to creditors, or distributed in specifics to distributees or legatees? It is respectfully submitted that no reasoning can hide the absurdity of such a proposition. The mayoralty is a personal public trust, and the relation between the Mayor and the city terminates instantly with the death of the Mayor. This is a personal action and dies with the person. Neither the wife, the children, nor the administrator of the appellant, can act as Mayor of the City of Cumberland. The appeal therefore abates, and should be dismissed.

OPINION

BOWIE C.J.

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 as a final judgment on verdict, by agreement, that an appeal might be taken.

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...