Dedrick v. California Whaling Co.

NOURSE, P. J.

The petitioners sued for a writ of mandate to require the respondents to call a special meeting of the shareholders of the corporation under the provisions of section 313 of the Civil Code. An alternative writ of mandate and order to show cause was issued and return thereto made by the respondents Biggins and Kerrigan.

The petition alleges that since August 27, 1932, the Whaling Company has been a corporation organized under the laws of Nevada with a capital stock of 3,000 shares; that since its organization it has been doing business in .the state of California; that all its . property is located within this state; that it has always maintained a business office in the city and county of San Francisco, and that it does not carry on business elsewhere. All its directors are residents of the state of California, and meetings of the directors are held in the city and county of San Francisco. The petitioners are alleged to be stockholders of the corporation holding more than a majority of the issued and outstanding stock; that F. K. Dedrick is owner of 650 shares; that Jessie H. Dedrick is the owner of 500 shares; that Mrs. F. K. Dedrick is the owner of 500 shares; that respondent Biggins owns 500 shares; that respondent Kerrigan owns 100 shares, and that the number of shares issued and outstanding and entitled to vote is 2,760. It is then alleged that no annual or special meeting of the stockholders has been held since the year 1932, and that in the month of February, 1936, F. K. Dedrick, Mrs. F. K. Dedrick and Fred Dedrick presented a request in writing to the respondent Kerrigan, as secretary of the corporation, asking that a meeting of the stockholders be called for purposes designated in the written request, one of _ which was for the election of a board of directors; that thereafter Fred

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Dedrick died and the petitioner Jessie A. Dedrick, as his surviving widow, became the owner of his stock; that on July 1, 1936, the three petitioners herein served upon the respondent Biggins and upon the respondent Kerrigan a request in writing to call a meeting of the stockholders for the like purposes. This request was refused, and the respondents still refuse to call any meeting of the stockholders.

The return does not fairly controvert any of the material allegations of the petition. At the outset, the respondents seek to avoid their statutory duty by alleging that after the service of the alternative writ upon them, they tendered their resignations as president and secretary respectively of the corporation. They entered some general denials of the allegations of the petition, but offered no proof in support of them. They then pleaded a lot of immaterial matter in reference to the controversy between the directors and one of the petitioners in reference to the disposition of some of the funds of the corporation. What is termed as a distinct defense attempts to attack the ownership of certain shares of stock claimed by another petitioner on, the ground that a probate decree awarding the stock t to her was procured through fraud. Of like character is the pleading designated as a separate defense in reference to the ownership of the stock claimed by the petitioner F. K. Dedrick. Therein it is pleaded that this petitioner procured some of the stock claimed by him in exchange for service rendered the corporation, but that in some manner the corporation was deceived when it issued that stock to such petitioner.