APPEAL from the Circuit Court of Adams County; the Hon.
RICHARD F. SCHOLZ, JR., Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Does a pending mandamus action survive the death of the petitioner?
The plaintiff, a tenured teacher in defendant's school system, was honorably dismissed at the end of the 1977-78 school year.
On February 28, 1978, plaintiff filed a petition for a writ of mandamus, asking the trial court to declare her dismissal to be in violation of section 24-12 of the School Code (Ill. Rev. Stat. 1979, ch. 122, par. 24-12) and to issue a writ of mandamus requiring defendant to reinstate her. The petition also sought "any and all actual and compensatory losses and damages" arising out of her dismissal, as well as $10,000 in punitive damages.
After an evidentiary hearing, the trial court denied plaintiff's petition, and she appealed. On February 4, 1981 — the day that this case was set for oral argument — plaintiff's attorney filed with this court a document entitled "Suggestion of Death and Substitution of Parties." The document stated that plaintiff had died in November 1980 and asked that her executor be substituted as the plaintiff in this case. Pursuant to our request, plaintiff's attorney subsequently filed a document which stated that plaintiff's death had occurred on November 7, 1980. We also asked the parties to submit supplemental briefs addressing the issue of the survivability of this action.
• 1 The issue before us is whether to allow the motion for substitution. In cases in which a plaintiff's cause of action survives his death, plaintiff's personal representative is a proper party to pursue the action, and a court should grant a motion to substitute the representative as plaintiff. (Ill. Rev. Stat. 1979, ch. 110, par. 54(2).) But if the cause of action does not survive plaintiff's death, the cause abates and no action is left before the court in which the representative can be substituted. Thus, to dispose of the motion for substitution, we first must determine whether a mandamus action survives a plaintiff's death.
• 2 A writ of mandamus will not issue to compel performance of a fruitless, nugatory act. (People ex rel. Cassidy v. Fisher (1939), 372 Ill. 146, 22 N.E.2d 937.) Thus, even plaintiff's attorney concedes that the mandamus action abated at plaintiff's death insofar as the prayer for reinstatement as a tenured teacher is concerned. See Hannon v. Harper (1908), 9 Cal.App. 260, 98 P. 685; State ex rel. Tobin v. Sweeney (1942), 139 Ohio St. 625, 41 N.E.2d 701.
It is contended, however, that the prayers for damages survive plaintiff's death and that the case can therefore be pursued by the executor to that extent. Courts> have seldom been called upon to decide the issue of whether a prayer for damages, contained within a petition for a writ of mandamus, survives a plaintiff's death. But even the few decisions on the subject have developed contrary lines of authority. Cases suggesting that such actions survive include State ex rel. Ake v. Kansas City (1926), 221 Mo. App. 784, 288 S.W. 85, Levitch v. Board of Education (1926), 216 App. Div. 391, 215 N.Y.S. 309, rev'd on other grounds (1926), 243 N.Y. 373, 153 N.E. 495, People ex rel. Fairchild v. Commissioners of the Department of Fire & Buildings (1887), 105 N.Y. 674, 12 N.E. 179, and Cain v. Stucker (1946), 159 Pa. Super. 466, 48 A.2d 162.
We feel bound, however, by the contrary line of cases, for that is the approach followed by our supreme court in People ex rel. McPherson v. Western Life Indemnity Co. (1914), 261 Ill. 513, 104 N.E. 219. In that case, McPherson filed a petition for a writ of mandamus requiring defendant to accept premium payments from McPherson for a certain life insurance policy and to restore McPherson's membership and keep the policy in force during his life, provided he continued to make payments. McPherson died while the case was on appeal.
The court observed that a mandamus action is treated like other actions at law and that if a cause of action is so personal that a party could not assign it during life, then it cannot survive to his representatives at death unless a statute specifically provides for its survival. The court noted that the statutes on abatement and on estate administration provided for survival of certain actions but that mandamus was not mentioned in either statute as an action that survives. Section 8 of the Mandamus Act provided, inter alia, for the survival of a mandamus action upon the death of a defendant, his successor in office being a proper party. However, the Act made no provision for survival if a plaintiff died. The court said:
"Proceedings for mandamus being in the nature of a personal action, it follows, necessarily, that they abate upon the death of the person in whose behalf they have been instituted. They cannot, therefore, be prosecuted by the personal representatives of the relator after his death. (High on Ex. Legal Rem. — 3d ed. — sec. 437.) When the relator in a mandamus proceeding is a private individual and is the real party in interest, death operates as an abatement of the action. [Citations.]" 261 Ill. 513, 515-16, 104 N.E. 219, 220.)
As to the survivability of an attendant prayer for damages, the McPherson court noted that under the authority of Booze v. Humbird (1867), 27 Md. 1, if a mandamus petitioner dies, the mandamus action also dies, as do the "incidents" of that action. The court concluded:
"In this case the main object of issuing the writ was to compel the appellants to restore the petitioner to membership in said insurance company and to keep and treat his policy or contract of insurance in force during his life. It is conceded by counsel for appellee that the only part of the prayer of the petition that could now be enforced would be to compel the appellants to accept and apply on the policy the payments of premium tendered to them before the death of McPherson. The acceptance of this money was a mere incident to restoring the original relator to his membership in the said insurance company and treating his policy as in force." 261 Ill. 513, 516, 104 N.E. 219, 220.)
The court thus held that the entire case had abated. See also State ex rel. Sloan v. Hazzard (Del. Super. 1933), 36 Del. 107, 171 A. 454; State ex rel. Ahrens v. City of ...