The opinion
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BEATTY, C. J.
I dissent from the order denying a rehearing of this cause.
Assuming that this court'has the power to review the judgment of the district court of appeal in an original proceeding (a matter as to which I have no doubt), we must consider whether the facts stated in its opinion as grounds for issuing a peremptory writ of mandate are sufficient to justify the order.
In this case persons claiming to be directors of an Arizona corporation ask a California court to compel the delivery of its books and records to a person appointed by them as secretary. The case shows very clearly that it is necessary in the first place to decide that the persons invoking the remedy are directors of the corporation, their title to the office being in dispute and unadjudicated, by the courts of Arizona. All that appears is that a court of that territory, by its commissioner, called and held a stockholders’ election, and that the commissioner filed a report, which is not found to have been confirmed.
The result is that in a
mandamus
proceeding to enforce a duty not imposed certainly by any California law, we must try the title to the offices of a foreign corporation.
Mandamus
does not lie to try the title to an office.
In the next place, if the title to the offices was undisputed, and the duty of the respondent to deliver the books to his successor clearly imposed by the laws of Arizona, can the' courts of this state enforce the performance of that duty by
mandamus?
I do not think they can. No doubt the newly elected secretary, if by the law of Arizona he is entitled to the custody of the books, could maintain an action in this state in the nature óf replevin to recover the possession—an action in which he could prove his title to his office—but in such an action the district court of appeal would have no original jurisdiction.
The nature of the remedy available in such a case is therefore a matter of prime importance—for it determines the jurisdiction. If the courts of this state cannot try title to Arizona offices in mandamus, or if they cannot enforce by mandate the performance of duties enjoined by Arizona laws, the district court of appeal has rendered judgment in a case not within its jurisdiction.