
    No. 436
    STATE ex rel v. OHIO PUB. SERVICE CO.
    Ohio Appeals, 9th Dist., Wayne County
    No. 762.
    April 18, 1924
    985. QUO WARRANTO — Reply by relator may allege a forfeiture without constituting a departure from the petition drawn in the short form.
    Attorneys — C. H. Henkel and Franklin L. Maier, for the mtoion; Critchfield & Etling, contra; all of Wooster.
   FUNK, P. J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Action in quo warranto brought by the State ex rel Joseph Fritz, Pros. Atty. of Wayne Co., in which a petition, answer and reply were filed. Defendant moved to strike out certain parts of the reply of relator on the ground, among other things, that they alleged a forfeiture by .defendant and thus constituted a departure from the petition. In overruling the motion the court held:

1. Prior to the present code proceedings in quo warranto were commenced by information calling upon the respondent to show by what right it exercised its corporate powers.

2. Under the old rule of pleading it was held that it was competent for relator to aver a forfeiture by way of replication.

3. It has been held by the Hamilton County Circuit Court that the former rule of pleading is not affected by bringing quo warranto proceedings under the present code.

4. The rule of pleading in quo warranto is somewhat different than in the ordinary civil case. Quo warranto proceedings call for only a short form petition, setting forth one or more of the provisions under 12304 GC.

5. It is not necessary for the petition to specify the particulars of such usurpation or misuse of the powers and franchises of defendant corporation.

6. In this case it might have been well for the relator to have alleged that defendant had forfeited its rights and privileges by certain acts but the petition taken in connection with the answer seems to this court to warrant the pleading of a forfeiture in the reply, without committing a departure in so doing. Motion overruled.  