No. 4436 | Wash. | Feb 20, 1903
— This action was brought by the respondent (plaintiff below) against the appellant (defendant below) for the possession of certain books, papers, and moneys belonging to the respondent. It appears that the property sued for came into possession of the appellant as secretary and treasurer of the respondent corporation. It is alleged in the complaint “that on the 6th day of November, 1901, the defendant’s term of office as such secretary and treasurer terminated, and his successor, James Dawson, Esquire, was duly elected by the trustees of the plaintiff corporation, and thereupon he duly qualified as such secretary and treasurer, and the defendant was notified of such election and qualification.” The complaint also alleges a demand upon defendant that he turn over to said Dawson the money, books, papers, vouchers and seal of said corporation, and a refusal of defendant so to do. It also alleges that the plaintiff corporation is unable to transact its business without the use of its said books, papers, etc.; that the defendant refuses to perform the duties of secretary and treasurer of said corporation, and refuses the officers of said corporation access to the books and papers thereof; that defendant threatens to leave the state of Washington; that he is insolvent, and admits having in his possession $400 belonging to the plaintiff; and prays for a mandatory injunction requiring defendant to turn over to his successor in office, or to some proper officer of the corporation, the books, papers, vouchers, money, and the seal of said corporation, for judgment for $884.14, the money alleged to belong to the corporation, and for $500 damages. Before the issues were made up, a hearing upon plaintiff’s application for a mandatory injunction was had upon affidavits filed by both plaintiff and defendant. At this hearing the court granted a temporary mandatory
It conclusively appears from the affidavits of both plaintiff and defendant filed upon the hearing for this order of injunction that the real purpose of the action is to determine whether the appellant or James Dawson is the lawful secretary and treasurer of the plaintiff corporation. The plaintiff claims that Mr. Dawson is the legally elected and qualified secretary and treasurer, and is entitled to the possession of the books, papers, moneys, and insignia of office as such; while defendant denies that his term of office has expired, denies that his successor has ever been legally elected, and also denies that he is threatening to leave the state, or that he is insolvent, or that he has refused to perform any of the duties of his office, or that he has refused the officers and stockholders free access to the books and papers of his office. lie further states that no stockholders’ meeting was ever legally called for the purpose of electing trustees or other officers to succeed himself and associates. The effect .of the mandatory order of injunction appealed from was to dispossess the appellant of his office, and dispossess him of the property belonging thereto, upon the preliminary hearing. Certainly, where there is a bona fide claim of right to the possession of an office and the property belonging thereto, the court will not dispossess one in possession so claiming pending a determination of that question, especially where the one in possession and claiming the right to act as such officer is willing to and does perform all the duties of his office. In the case of State ex rel. Byers v. Superior Court of Spokane County,
The cause is therefore reversed, and the order of injunction vacated.
Fullerton, C. J., and Dunbar and Anders, JJ., concur.