Farrington v. Fairfield

FORD, J.

This is an appeal by Evert L. Hagan from an order denying his motion that he be substituted as petitioner in the place of Charles M. Farrington in a mandamus proceeding.

The record discloses that on March 10, 1959, a judgment was entered in which it was ordered that the respondent Fairfield permit Farrington “to examine and make abstracts from the stock register, minutes of proceedings of the directors and shareholders and books of account of Benedict Heights, Incorporated, in person or by his attorney or agent, ’ ’ such inspection to be had at a designated time and place. A peremptory writ of mandamus was issued pursuant to the judgment. Thereafter, the appellant Hagan made his motion for an order substituting him as petitioner in the place of Farrington “upon the ground that on December 9, 1959, Charles M. Farrington assigned the cause of action in the above matter to Evert L. Hagan.” To the declaration of Hagan filed in support of his motion was attached a copy of the assignment upon which he relied, the body of which was as follows:

“For value received, receipt and sufficiency of which is hereby acknowledged, the undersigned Charles M. Farrington, hereby transfers and assigns to Evert L. Hagan all his right, title and interest in and to the above mandamus proceeding and all of his right, title and interest in and to Certificate Number 35 of Benedict Heights, Inc., a corporation.”

On February 19, 1960, the court denied the appellant’s motion. In the minutes, the basis of that ruling is stated as

[239]

follows: “The assignment of shares of stock may be made, but not the order contained in a peremptory writ of mandate. Hagan’s remedy is to demand an inspection and if refused to seek a writ.”

The purpose of a writ of mandamus is to enforce a clear legal right of the particular petitioner against one who has a legal duty to perform an act necessary to the enjoyment of such right. Although generally classed as a legal remedy, the question of whether it should be applied has been said to be largely controlled by equitable considerations. (See

Dowell

v.