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Providence Baptist Church v. Superior Court of S.F. - 40 Cal. 2d 55, 251 P.2d 10 (1952)


The remedy in the ordinary course of law by an appeal from the judgment at the end of a trial is not adequate when a court has no jurisdiction to proceed with the action and no appeal is available before final judgment.


Plaintiff Providence Baptist Church of San Francisco ("Church"), a nonprofit corporation, and its trustees filed an action in California state court seeking a declaration that defendant F. B. Banks, the pastor of the church, had been regularly and properly discharged as pastor but refused to vacate the position and surrender documents and funds of the Church. The trial court determined that the pastor was not properly removed, and appointed a referee to hold an election to determine whether the pastor should be removed. The pastor's counsel filed an appeal from that interlocutory judgment. The appeal was dismissed because the interlocutory judgment was not appealable. The Church and the pastor filed the petition for prohibition seeking to restrain further proceedings by respondent Superior Court of the City and County of San Francisco. 


Was prohibition the proper remedy?




The state supreme court held that a writ of prohibition was the appropriate remedy because there was not another adequate remedy. However, the court dismissed the writ because the lower court had jurisdiction over the election. The court held that pursuant to Cal. Corp. Code § 2238, a court could determine the person entitled to the office of director or could order a new election or appointment be made, and direct other relief as was just and proper. The court held that § 2238 was made applicable to nonprofit corporations such as the Church through § 9002. The court held that although the pastor was not a director, the situation was similar and the previous irregular election by the Church had no effect. Thus, the court denied the writ of prohibition and discharged the alternative writ.

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