Rossi v. Rossi

NOURSE, P. J. Plaintiff sued for the rescission of an executed contract whereby he and Narciso relinquished and [640]transferred fractional portions of their stockholdings in the corporation — Alfredo Rossi and Company. Respondent answered and filed a cross-complaint seeking specific performance of the contract and an injunction to restrain plaintiff and others from holding a directors ’ meeting. A restraining order was issued on the cross-complaint.

The plaintiff Luciano Rossi alone appeals from the order restraining him and certain others from acting as directors of the corporation. The injunction was based on the ground that the named defendants were not legally qualified directors.

Originally the shares of stock were divided—500% to Luciano Rossi and 499% to Narciso Rossi. Differences having arisen between these two an agreement was made whereby Luciano transferred one and one-half of his shares, and Narciso transferred one-half of his share to Dismo Scatena. Such transfer was duly recorded and Scatena was thereupon declared to be the owner of two shares. Whether Scatena actually accepted and received the two shares is disputed but positive it is that they did not revert to the original transferors. Thus they each retained 499 shares and Scatena was made a director.

At a meeting of the board of directors held on April 26, 1954, three of the directors—Louis Ferrari, Elios P. Anderlini, and Joseph A. Brown all tendered their resignations which were forthwith accepted. The vacancies were thereupon filled by the election and qualification of three others. Thereafter the president of the company gave notice of a stockholders’ meeting to be held May 24, 1954, and of a special meeting of the directors to be held May 26. These notices were sent to Ferrari, Anderlini and Brown, all of whom had theretofore resigned and terminated their right to act. Thereupon the respondent obtained from the superior court an order permitting him to bring in, as additional parties to his cross-complaint, Brown, Anderlini and Rose Rossi, another director. Upon this being done respondent had a temporary restraining order and, after full hearing, an injunction pendente lite was issued restraining the defendants to the cross-complaint from holding a directors’ meeting or from interfering with the business of the corporation by the new directors elected at the meeting above noted held on April 26, 1954. The appeal is taken from this order.

Manifestly, if the trial court had jurisdiction to issue the order, the only ground of attack which could be made here is that the order was a breach of discretion. Jurisdiction to