
    Commonwealth of Pennsylvania ex rel. William Henderson v. Masonic Home of Pennsylvania et al., Appellants.
    
      Corporations — Mandamus—Quo warranto.
    
    Where a decree in mandamus directing a corporation to recognize a particular person as an officer, is based solely upon a prior judgment of ouster against another claimant of the office, and appeals are taken both from the judgment of ouster and the decree of mandamus, the Supreme Court in reversing the judgment of ouster and entering judgment in favor of the defendant in that proceeding, will reverse the decree of mandamus, inasmuch as there is nothing upon which the mandamus can operate after the judgment of ouster has been reversed.
    Argued April 5, 1898.
    Appeal, No. 112, Jan. T., 1898, by defendants, from order of C. P. No. 2, Phila. Co., March T., 1896, No. 1003, on petition for mandamus.
    Before Sterrett, C. J., Green, McCollum, Mitchell and Dean, JJ.
    Beversed.
    Petition for mandamus.
    The facts appear by the opinion of the Supreme Court and the report of Commonwealth v. O’Donnel, ante, p. 14.
    
      ¡Error assigned was in entering decree awarding a peremptory mandamus.
    
      Robert H. Hinckley and F. Oarroll for cluster, for appellants.
    —The general rule that judgments are conclusive only upon parties to the record or their privies applies to proceedings in quo warranto. A judgment of ouster, therefore, in no manner concludes the rights of one who was not a party to the action : High’s Extraordinary Legal Demedies, see. 748; People v. Murray, 73 N. Y. 535.
    
      George Henderson and M. Hampton Todd, for appellee.
    The proposition that title to an office can only be tried in quo warranto needs no authority to sustain it. And it is equally true that title cannot be tried in mandamus. It is also true that, if on the application for a mandamus there be any doubt as to the title of the relator, he will first be compelled to establish it by an action in quo warranto. Judgment of ouster and a decree of election in his favor may then be enforced by mandamus: Com. v. County Commissioners, 5 Rawle, 75 ; Com. v. Burrell, 7 Pa. 34; Com. v. Mann, 5 Dist. Rep. 439.
    Oct. 17, 1898:
   Opinion by

Mr. Chief Justice Sterrett,

This case was argued with No. 177, January term, 1898, Com. ex rel. William H. Henderson v. John O’Donnel, in which an opinion has just been filed reversing the judgment of ouster, etc., entered by the court below against the defendant, on demurrer to his answers, and entering judgment here in his favor, ante, p. 14. That judgment of ouster was and is the sole'basis of the decree in this case sustaining the demurrer to defendant’s return and peremptorily commanding them “to place the name of the relator, William H. Henderson, on the roll of managers of the Masonic Home of Pennsylvania, to recognize him as a manager thereof, and to permit him to enjoy and possess the said office of manager of the Masonic Home of Philadelphia, its privileges and franchises, and not to exclude him therefrom.”

This mandatory decree was entered pending the defendant’s appeal from the said judgment of ouster, etc., in the quo warranto proceeding.

The only subject of complaint in this case is the entry of the above quoted mandatory decree.

Aside from any question as to its merits or demerits — which it is unnecessary now to discuss — it is very evident that this decree cannot be affirmed, because the judgment of ouster, etc., on which alone it was based, has not only been reversed and set aside by this court, but in lieu thereof we have entered a final judgment, on the demurrer, in favor of the defendant. There is therefore nothing to sustain the mandatory decree, nor is there anything upon which it can operate.

Without referring to the undisputed facts in this case, all of which appear in the record, — or attempting to discuss the questions supposed to be involved, it is sufficient to say that we are satisfied the learned court erred in sustaining the demurrer and entering the mandatory decree complained of.

The decree is therefore reversed and set aside, and the petition for mandamus is dismissed at the appellee’s costs.  