Summary
In Klick v. Snavely (1928), 119 Ohio St. 308, 164 N.E. 233, we reviewed our orders to determine that an allegation in a petition was not true.
Summary of this case from National Distillers Chem. Corp. v. LimbachOpinion
No. 21348
Decided November 28, 1928.
Quo warranto — Action premature — Relator must show office unlawfully held by another — Section 12303, General Code — Supreme Court takes judicial notice of record in another action — Respondent's encumbency stayed by Supreme Court in another proceeding.
IN QUO WARRANTO.
Messrs. Knepper Wilcox, and Mr. P.E. Dempsey, for relator.
Messrs. Lynch, Day, Fimple, Pontius Lynch, and Mr. J.G. Ketterer, for respondent.
On September 15, 1928, the relator filed in this court an original action in quo warranto asking for a judgment of ouster against the respondent, and an induction of the relator into office. The petition in quo warranto alleged that the respondent was "wrongfully holding said office and exercising the powers, functions and prerogatives thereof."
Section 12303, General Code, authorizes an action in quo warranto against a person "who usurps, intrudes into, or unlawfully holds or exercises, a public office."
This action is brought by the relator in his private relation. Such being the case, in order to maintain his action, the relator "must show not only that he is entitled to the public office, but also that the identical office is unlawfully held and exercised by another." State, ex rel. Heer, v. Butterfield, 92 Ohio St. 428, at 432, 111 N.E. 279, 280; State, ex rel. Symons, v. Rice, 96 Ohio St. 574, 117 N.E. 893.
The relator's petition, conforming to the statute and the foregoing decisions, alleges that the respondent "has been and is now unlawfully and wrongfully holding said office and exercising the powers, functions and prerogatives thereof." Notwithstanding said allegation that the respondent is holding and exercising the powers of the office in controversy, the record of this court, of which we take judicial notice, discloses the fact to be otherwise. At the time this petition in quo warranto was filed, there was pending in this court an action between the same parties involving the possession of this office; our records disclose that in that action, which was in mandamus, the respondent secured favorable judgments for the possession of the office in the lower courts, but that later this court stayed such judgments until further order, or the final determination by this court. Such being the case it appears that, by the orders of this court, respondent is not in possession of the office, and could not therefore exercise its functions.
This action in quo warranto is prematurely brought, and the motion to dismiss it will be sustained.
Motion sustained.
MARSHALL, C.J., DAY, KINKADE, ROBINSON and JONES, JJ., concur.
ALLEN, J., not participating.