Dulin v. Pacific Wood & Coal Co.

Harrison, J. At a meeting of the stockholders of the Pacific Wood and Coal Company, a corporation, held at San Diego, November 17,1892, for the election of five directors for the year then next ensuing, the appellant Clugston was declared elected as one of the directors. The respondent herein claimed that certain votes offered to be cast for himself at the election should have been received, and that if they had been received, the result of the election would have shown that he was elected instead of Clugston. On the 10th of December, 1892, Dulin filed his petition in the superior court of the county of San Diego, under the provisions of section 315 of the Civil Code, making the corporation and Clugston defendants, and praying the court to set aside the election of Clugston as a director, and to confirm the election of himself as such director, and for such other relief in the premises as might seem proper. The matter was heard by the court, and on the 25th of January, 1893, it rendered its judgment that at the said election Dulin was elected one of the directors of the corporation, and that his election be confirmed, and that Clugston was not elected, and had not since the seventeenth day of November, 1892, been a director in said corporation. On the same day the defendants appealed from the judgment, and now ask for an order “staying the proceedings in this action and restraining the respondent Dulin from doing any act as director, president, or manager of the appellant, the Pacific Wood and Coal Company, or interfering with the management of the business of said company by the appellant Clugston as director and president, and the other directors thereof.”

Each of the contestants herein states in his affidavit filed upon this motion that after the election in November he was duly elected president of the corporation, the respondent Dulin stating that he “was by said board of directors duly elected president of said corporation,” and the appellant Clugston that he “ was duly elected president of said corporation by the votes of himself, James Wells, and Clugston, being a majority of said board,” from which it would appear that after^the election two of the directors recognized the appellant as having been elected one of their number, while two others recognized the respondent, and that each of the contestants thereafter assumed to act [306]as such president. It also appears from the affidavits that, after judgment had been entered herein, the corporation brought an action against the appellant Clugston for the purpose of preventing him from trespassing upon its property, or interfering with its business, and that by virtue of the process issued therein, Clugston was ejected from certain premises belonging to the corporation, and Dulin took possession thereof, and assumed to act as a director and its president, and that Clugston was excluded from the management thereof. The appellants contend that by virtue of their appeal the respondent is prohibited from doing these acts, and they now ask for this order in support of their contention.