Spangenberg v. W. Heavy Hardware & Iron Co.

SHAW, J.

The appeal is from the judgment and from an order denying a new trial.

In the court below judgment was given directing that a writ of mandate issue to compel the defendants, Joseph Nesbit and Charles Nesbit, as president and secretary, respectively, of the corporation defendant, to transfer to the plaintiff upon the books of the corporation one hundred shares of its capital stock, which, it was alleged, had been purchased from the original owners by the plaintiff. The defendants demurred to the petition upon the ground that it did not state facts suffi

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cient to warrant such relief. This demurrer was overruled, whereupon defendants answered, a trial was had, and judgment was given as above stated.

The demurrer to the petition should have been sustained. The rule in this state is that

mandamus

will not lie to compel a transfer of corporate stock. The reason of the rule is that the party has an adequate remedy in the ordinary course of law. Possibly there may be eases in which

mandamus

would issue because of the fact that the remedy at law .while adequate would not be speedy, but in this case no facts tending to show such a condition are set forth. The course of decision has not been entirely uniform. In

People ex rel. Bosqui

v.

Crockett,

9 Cal. 112, a judgment in

mandamus

compelling such transfer was affirmed. Objection that

mandamus

was not the proper remedy was not raised nor was the point mentioned in the opinion. In

Kimball

v.

Union Water Co.,