Dye
Potomac Oil Co. v. Dye
Opinion
Lead Opinion
Allen, J.
The material matters set forth in the petitioners’ application for this writ are fully stated in Potomac Oil Co. v. Dye, 10 Cal. App. 534 , [ 102 Pac. 677 ]. Upon that hearing there was involved the sufficiency of the petition, the jurisdiction of this court to grant relief by mandate, and its appropriate character to compel a person claiming to act as secretary of the corporation to deliver up to the corporation its seal, books, papers, records, etc., all of which matters were determined in favor of petitioner, and require no further consideration or discussion upon this hearing.
In the single issue presented by the amended answer as to the official character of petitioner is involved practically all of the questions presented for determination upon this hearing. The burden is cast upon petitioner to show that he is the legally appointed secretary of the corporation and entitled to the books, papers and seal of such corporation. The facts connected with the establishment of such official relation of petitioner are before the court in the report of a referee heretofore appointed to take testimony, and in certain depositions and exhibits on file. From all of these it is made to…
Dissenting Opinion
Beatty, J.
I dissent from the order denying a rehearing of this cause.
Assuming that this court'has the power to review the judgment of the district court of appeal in an original proceeding (a matter as to which I have no doubt), we must consider whether the facts stated in its opinion as grounds for issuing a peremptory writ of mandate are sufficient to justify the order.
In this case persons claiming to be directors of an Arizona corporation ask a California court to compel the delivery of its books and records to a person appointed by them as secretary. The case shows very clearly that it is necessary in the first place to decide that the persons invoking the remedy are directors of the corporation, their title to the office being in dispute and unadjudicated, by the courts of Arizona. All that appears is that a court of that territory, by its commissioner, called and held a stockholders’ election, and that the commissioner filed a report, which is not found to have been confirmed.
The result is that in a mandamus proceeding to enforce a duty not imposed certainly by any California law, we must try the title to the offices of a foreign corporation.