Roma MacAroni Factory v. Giambastiani

THOMPSON, J.

In this matter the petitioners filed in this court a verified petition, asking that a peremptory writ of mandate issue to respondents directing and compelling them to deliver to petitioners the books and records of the Roma Macaroni Factory, a corporation. No alternative writ was sought, but without extending to the court in the first

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instance an opportunity of declining to assume jurisdiction by the denial of the alternative writ, petitioners brought the matter on for hearing by a notice of motion to the respondents. We quote from the petition as follows: “This application is made to this court in the first instance because the corporation laws of this state contemplate that a new board of directors shall be elected annually and enter upon their duties immediately after their election. Only by a judgment of this court can the petitioners enter upon such duties within the time for which they have been elected.” The foregoing is the only reason assigned for making the application here. It appears, however, that there is and was pending at the time, an action in the Superior Court in and for the City and County of San Francisco, and numbered therein 241972, wherein the petitioners here are plaintiffs and the respondents here are defendants, and wherein the plaintiffs allege that they are in possession of the books and records of the corporate plaintiff and ask that the defendants be restrained from interfering with the possession thereof. It also appears that a temporary restraining order restraining defendants from interfering with the possession of plaintiffs was issued by the superior court on March 10, 1933, which was just fourteen days before the petition was filed here. From an inspection of the pleadings in that case it is plain that it was brought to determine the validity of the same election as is involved in this proceeding.

Rule XXVI of this court reads in part as follows: “Section 1. When an application is made to the Supreme Court or a District Court of Appeal, for a writ of

mandamus, certiorari, prohibition, procedendo,

or for any prerogative writ to be issued in the exercise of its original jurisdiction, and such application might have been lawfully made to a lower court in the first instance, the affidavit, or petition, in addition to the necessary matter requisite by the rules of law to support the application, shall also set forth the circumstances which, in the opinion of the applicant, render it proper that the writ should issue originally from the appellate court to which such application is made, and not from the lower court.”