Foster v. Superior Court

Harrison, J. At the annual election for directors of the San Francisco & North Pacific Railway Company, held in February, 1896, certain votes offered in favor of Sidney V. Smith, as one of the directors, were rejected by the chairman of the meeting, and at the close [281]of the election Antoine Borel, J. B. Stetson, Andrew Markham, A. W. Foster, P. N. Lilienthal, George A. Newhall, and John L. Howard were declared by the chairman to have been chosen the directors for the year then next ensuing. Thereafter Smith, together with Borel, Stetson, and Howard, filed their application in the superior court of San Francisco, under the provisions of section 315 of the Civil Code, setting forth their claim that the votes offered for Smith should have been counted, and that he, instead of Lilienthal, should have been declared elected as one of the directors. Upon the issues presented by the answer of the other directors to this application, the court held that Smith and not Lilienthal had been elected a director with the others, and that he was entitled to exercise the office, and that Lilienthal should be excluded therefrom. Judgment was entered March 23, 1896, in accordance with these findings, and also enjoining the defendants from interfering with Smith in the exercise of his office as director. On the same day that this judgment was entered an appeal therefrom to this court was taken and perfected by the defendants, and thereafter at a meeting of the directors which had been called pursuant to the by-laws of the corporation, Smith sought to enter the room at which the meeting was to be held, but was excluded therefrom by Foster, who had been chosen the president of the board, and the meeting of directors was held without permitting him to be present. Upon an affidavit setting forth these facts, the superior court cited Foster before it to show cause why he should not be punished for contempt, and upon the hearing adjudged him guilty of contempt in thus preventing Smith from being present at the meeting of directors. Upon an application made to this court by Foster for a review of the last-named order, and that it be annulled upon the ground that upon the appeal from its judgment the superior court ceased to have jurisdiction for its enforcement, an alternative writ of review was issued to the [282]superior court, and the foregoing facts are set forth in its return to the writ.