Fratessa v. Superior Court

WORKS, P. J.

Petitioners and two others, as stockholders of the Sunset Pacific Oil Company, brought suit in respondent court for the purpose of procuring an accounting and to recover a money judgment from the defendants, excepting the corporation named, which was one of them. The suit was thus commenced because of the refusal of the corporation to begin such an action and was commenced for its benefit. Later, the corporation filed a cross-complaint praying for the relief which plaintiffs had demanded in the complaint. Later still, the property of the corporation was placed in the hands of a receiver under order of the United States District Court, and the receiver was substituted, in the action in the superior court, as cross-complainant in the place and stead of the corporation.

Counsel for plaintiffs, as it is alleged in the petition, without the knowledge or consent of petitioners, entered into and closed negotiations with the defendants for the purpose of compromising the subject matter of the suit, and at the time when the alternative writ in the present proceeding issued respondent court was engaged in the trial of the question whether the proposed compromise should be approved. Pending this trial petitioners moved respondent court for a substitution of certain counsel in the place and stead of those attorneys who had theretofore represented plaintiffs in the action, and the motion was denied. Petitioners then asked this court for the writ of mandate for the purpose of compelling the substitution of attorneys, and an alternative writ issued. The paper also contained language prohibiting respondent court from proceeding with the trial of the compromise question.

All of the matters above alleged appear, among other things unnecessary to point out, on the face of the petition.

Upon the return day respondents presented a demurrer to the petition and also an answer. Stipulations were then

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made which disposed of all questions of fact and argument was presented upon the facts and upon the question of law raised by the demurrer together. The proceeding was decided from the bench, but as the minutes of the court show the orders made in a somewhat informal style, an amended or corrected order changing the form, but not the substance, of the orders as shown by the minutes, is appended to this opinion. In the orders made from the bench no disposition was made of the demurrer to the petition. That omission is supplied at the end of the amended orders to which we have referred.