Security Investors Realty Co. v. Superior Court

California Court of Appeal Oct 25, 1929 No. Docket No. 6715.Published

Before: York

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Holding. The court held that a corporate officer's resignation is effective upon tender to the proper authorities, regardless of whether it is formally accepted or recorded, rendering subsequent service of process upon that individual invalid.

Issues

Whether a corporate officer's resignation is effective without formal acceptance by the corporation.
Whether service of process upon a former officer who has resigned is valid service upon the corporation.

Disposition. Peremptory writ issued.

Quotations verified verbatim against the opinion

“An officer of a corporation may terminate his office by resignation, if the statutes, charter and hy-laws impose no limitation thereon, and, in doing so, he need give no notice to the public nor to persons dealing with the corporation.”

“It would therefore follow that the resignation of Shirley E. Meserve as secretary and as director was complete and effective, and therefore that service in this case had upon him as an officer of the corporation was the same as if made upon a stranger.”

YORK, J.

Service of summons in an action was attempted to be made upon Security Investors Realty Company by delivery of copies of summons and complaint to Shirley E. Meserve, secretary of said company, more than a year after he had tendered his resignation in writing as secretary and director of said company, which resignation was deposited in the United States mail,. directed to the Security Investors Realty Company and J. Meyer, president thereof.

[451]

Upon the entry of a default in such action against the said company, petitioner served upon plaintiff's counsel a notice of motion and special appearance requesting the court to quash the purported service of summons upon petitioner herein as a defendant in such action by such service had upon said Shirley B. Meserve. This notice of motion was made without making an appearance for any other purpose, said motion being supported by affidavits showing that Shirley E. Meserve, before the said service upon him as secretary of the said corporation, had resigned both as secretary and as director thereof. Upon a hearing of said matter, the court on or about the tenth day of June, 1929, did make and enter an order denying said motion. Thereafter, petitioner here petitioned this court for both a writ of review and a writ of prohibition, and this court issued an alternative writ of prohibition, only.

The whole question to be determined in this matter is whether or not the said Meserve was, at the time of the service of the said summons and complaint, secretary of or a director of said corporation.

Some point is made of the fact that in the by-laws of said corporation it is provided that “Each director shall serve for the term for which he shall have been elected and until his successor shall have been duly elected and have qualified . . . ,” and also “The executive officers of the company shall be a president, vice-president, secretary and treasurer. The president, vice-president, secretary and treasurer shall be elected annually by the board, and shall hold office until their successors are appointed.”

Quoting from 7 Ruling Case Law, page 427, section 416: “Resignation: An officer of a corporation may terminate his office by resignation, if the statutes, charter and hy-laws impose no limitation thereon, and, in doing so, he need give no notice to the public nor to persons dealing with the corporation.” (Citing

Security Investors Realty Co. v. Superior Court

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YORK, J.

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