Wickersham v. Brittan

Harrison, J. The plaintiff commenced this action under the provisions of section 315 of the Civil Code for the purpose of determining the right of the defendant to be a director in the Bank of San Luis Obispo, a corporation organized under the laws of this state. In his petition he alleges the incorporation of the bank; that he is a stockholder therein; that at the annual election of directors on October 15, 1890, J. L. Crittenden, J. W. Smith, P. W. Murphy, C. A. Pitkin, and W. E. Stewart were elected directors for the year next ensuing; that on the fourteenth day of January, 1891, Pitkin tendered his resignation as such director; “ that said resignation was handed to the said Crittenden, Stewart, and Murphy, who then and there assumed to be and act as members of the board of directors of said corporation, and to constitute a quorum thereof; that said Murphy was not then and there a member of said board, because he had resigned, and his resignation had been accepted and his successor had been elected”; “that thereafter the said Crittenden, Stewart, and Murphy, assuming to act as a board of directors of said corporation, and as a quorum thereof, passed a pretended resolution purporting to appoint the defendant, H. J. Brittan, a director of said bank, and since that time the said defendant, N. J. Brittan, has usurped and unlawfully exercised the office of a director of said bank”; and prayed “that the claim of said defendant, N. J. Brittan, to be a member of said' board be adjudged to be utterly invalid and void.” To this petition the defendant demurred, on the ground that [36]the court had no jurisdiction of the subject-matter of the action, and that the petition did not state sufficient facts to entitle the petitioner to any relief. The court sustained the demurrer, and dismissed the petition, and from the judgment entered thereon the plaintiff has appealed.

Section 315 of the Civil Code provides: “ Upon the application of any person, or body corporate, aggrieved by any election held by any corporate body, the district court of the district in which such election is held must proceed forthwith to hear the allegations and proofs of the parties, or otherwise inquire into the matters of complaint, and thereupon confirm the election, order a new one, or direct such other relief in the premises as accords with right and justice.”

Section 302 of the Civil Code provides that the directors of a corporation must be elected annually by the stockholders or members, and sections 307 and 312 provide the manner in which such elections may be held, and in section 305 it is declared that “whenever a vacancy occurs in the office of director, unless the by-laws of the corporation otherwise provide, such vacancy must be filled by an appointee of the board.”