Braslan v. Superior Court

BEATTY, C. J. Petition for writ of certiorari. The attorney general commenced an action against the Hnion Savings Bank of San Jose and its seven directors, in_ pursuance of the provisions of section 11 of the amended bank commissioners’ [124]act (Stats. 1895, p. 175), to enjoin them from the transaction of any further business and to compel a liquidation of thé affairs- of the bank. Subsequent to the commencement of the action, and to the appearance of the original defendants therein, several of the directors ‘ resigned, arid the petitioner claims to have been elected in place of one of them; but it is not shown that he was ever substituted as a defendant, or that he entered an appearance or gave any notice to the court or to any of the parties of his election as a director.

This bqing the situation of affairs, the attorney general, by leave of the court, filed and served upon the defendants who had appeared a supplemental complaint, alleging that all the directors of the corporation had resigned and that there were no directors, and praying the appointment of seven directors by the court. To this supplemental complaint an answer was filed containing no direct denials of its allegations, but merely alleging the fact that at different dates several of the directors had resigned, that their resignations had been accepted by the remaining directors and other persons elected in their place. Among other similar allegations it was alleged that this petitioner, at a date prior to the filing of .the supplemental complaint, had been elected a director in place of one who had resigned, and that he had entered upon the discharge of his duties; but it did hot allege that he was still a director. It was also alleged in this answer to the supplemental complaint that six of the directors last appointed—all of them,, that is to say, except Braslan, the petitioner here—had resigned, and their formal resignation was attached to the answer, which was signed by an attorney at law describing himself as attorney for all the defendants and their successors, except Braslan. Ho summons, citation, or other notice of the proceeding appears to have been served upon Braslan, but the matter was submitted to the court “on the pleadings,” whereupon the court appointed a full board of seven directors of the corporation. This is the order which the petitioner seeks to have reviewed, and such are the facts disclosed upon the hearing of a rule to show cause why a writ of certiorari should not issue.