Somo v. Superior Court

HOUSER, J.

As they affect the application herein for a writ of prohibition, the facts are not in dispute; but that situation is not true with reference to the basic facts upon which it is alleged that the lower court is about to act on a petition presented to it for a writ of mandate, and as incidental thereto, the issuance of a temporary restraining order or an injunction

pendente lite.

More particularly, from the petition for a writ of prohibition and the answer thereto presented to this court, it appears that as the proposed result of a petition for a writ of mandate the lower court summarily, and without a trial of the involved issues of fact, is about to issue its order by which the petitioners herein, Somo and Strauss, who are not only assuming to act, but in fact acting, as the president and secretary respectively of Maywood Mutual Water Company No. 1, a corporation, and' as such in possession of the office, office equipment, records, files, etc., of such corporation, will be required to surrender the same to Goodway and Butler, who likewise assert their right to act in the capacities of president and secretary respectively of the same corporation; and that the said Somo and Strauss desist from the collection by them, or by either of them, of bills of account owing to said corporation.

The record in the lower court shows that Goodway and Butler claim the right to said offices respectively by virtue of the result not only of a referendum election instituted against Somo and Strauss, in their said respective capacities, but as well that Goodway and Butler also assert their alleged rights founded upon the result of an election by

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the stockholders of the said corporation at a meeting thereof claimed to have been regularly and legally called and conducted. On the other hand, by their answer to the petition for such writ of mandate and injunction, Somo and Strauss, both generally and specifically, denied practically each and every issuable fact essential to the establishment of the asserted right of Goodway and Butler. In addition- thereto, by their affirmative answer to said petition for a writ of mandate, Somo and Strauss alleged that at another recently called and conducted meeting of the stockholders of the corporation, certain directors thereof were elected, who thereupon proceeded to and did regularly and legally reelect Somo the president, and Strauss the secretary, of said corporation; and that thereupon they accepted such respective offices and are now acting as such officers. It thus appears that Somo and Strauss are in office, at least as hold-overs, and that they claim that in due and legal form they have been re-elected to their respective office; while neither Goodway nor Butler ever has occupied either of said offices, but claims the right thereto by virtue of other elections.