
    MAHON v. WAYNE CIRCUIT JUDGE.
    Mandamus — Propriety—Necessity oe Writ.
    Mandamus will not issue to compel the vacation of an order denying a temporary injunction where the return shows that a. preliminary injunction is not presently necessary to protect relator’s rights, and may never become necessary through the determination of relator’s suit upon the merits.
    Mandamus by Thomas J. Mahon to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order denying a temporary injunction.
    Submitted October 6, 1908.
    (Calendar No. 23,066.)
    Writ denied November 2, 1908.
    
      Thomas J. Mahon, in pro. per.
    Navin, Sheahan & Bourke, for respondent.
   Per Curiam.

On September 19, 1908, relator presented to respondent his bill of complaint, in chancery, praying “that a preliminary injunction be issued out of and under the seal of . this court, commanding the said defendant, the Detroit Baseball Company, its officers' and agents, * * * prohibiting them and each of them from playing baseball at the grounds known as Bennett Park, and from using said park for the purpose of playing baseball on Sunday, September 20, 1908, and upon Sunday, September 27, 1908, and every other Sunday hereafter, and upon final hearing to forever prohibit the use of said grounds for the playing of baseball on Sunday by the aforesaid defendants,” etc. Respondent having refused to issue the preliminary injunction prayed for, relator applied to this court on September 22, 190.8, for the writ of mandamus to compel respondent to issue the injunction. An order to show cause was issued, returnable October 6th, and respondent filed his return on October 5th.

Respondent’s return shows, among other things, “that he is advised upon information and belief that it is not the intention of the Detroit Baseball Company to attempt the playing during this present season of any further games of baseball on Sunday, and that consequently no further such alleged nuisance will be committed during the balance of this season. * * * This respondent respectfully shows untó the court that, after carefully considering the matter of petitioner’s motion, he has decided to grant the prayer of petitioner, by issuing an order to show cause; * * * that, in view of this respondent’s determination to issue said order to show cause, he respectfully requests this honorable court to withhold its decision in relation to this petitioner’s petition for mandamus until a return is had to the order to show cause,” etc. It is apparent that a preliminary injunction is not necessary at the present time to protect the relator’s rights, and that it may never become necessary, through the determination of relator’s suit upon the merits.

For these reasons, the writ is denied.  