Santa Ynez Mercury Corp. v. Superior Court

MoCOMB, J. This is an original application for a writ of prohibition to restrain (a) all further proceedings upon an order of the respondent superior court appointing a receiver for petitioner corporation, and (b) all further proceedings in an action now pending before the Superior Court of Santa Barbara County entitled Oscar E. Hanno et al., Plaintiffs, v. Santa Ynez Mercury Corp. et al., Defendants, No. 29421. Respondents have filed a demurrer to the petition.

The essential facts are:

February 7, 1938, Osear E. Hanno and Mrs. Harry Houser as plaintiffs, filed an action in the Superior Court in and for the County of Santa Barbara, naming Santa Ynez Mercury Corp., Ltd., and Hans Peters and William Peters as defendants. Paragraph IX of the complaint alleged:

“That dissension has arisen in the Board of Directors, which said board consists of four members, as hereinabove mentioned whom the plaintiffs are two, and the defendants Hans Peters and William Peters the other two. That because of the dissension, mutual hostility and distrust of the directors toward each other, no business of the corporation has been transacted by said corporation during the past year, nor is it possible because of the distrust and dissension of the Board of Directors for them to transact any business of the corporation, or to elect any person to act as manager or to give any person authority or power to transact business for said corporation.”

Thereupon respondent superior court appointed respondent McCloskey receiver of the Santa Ynez Mercury Corporation’s property and on February 17, 1938, made an order directing said corporation to deliver all of its property to James M. McCloskey as receiver.

February 18, 1938, defendants in said action, petitioners herein, filed a demurrer to the complaint and a motion for change of venue to Los Angeles County. On February 28, 1938, the motion for change of venue was called for hearing before respondent court, sitting in the city of Santa Barbara, which refused to entertain the motion for the reason that since plaintiffs’ attorney resided in the city of Santa Maria the motion under the rules of the Superior Court of Santa [281]Barbara County should have been noticed before the department of the superior court sitting in Santa Maria.

This is the sole question necessary to determine: