
    Harding v. Eichinger.
    
      injunction against claimant to public office— Will not lie, when.
    
    Injunction will not lie at the suit of a claimant to a public office who is out of possession, against an adverse claimant who is in possession.
    (Decided January 18, 1898.)
    Error to the Circuit Court of Richland county.
    The defendant in error commenced his action against the plaintiff in error, by filing in the court of common pleas of Richland county, a petition of which the following is a copy, viz.:
    aThe plaintiff says: That on the first Monday of April, 1895, he was, and still continues to be, an elector and resident of the seventh ward of the city of Mansfield, Richland county, Ohio, and on that day at said city election, he was duly elected by the voters of said ward, one of its members of said city’s board of education, and was duly qualified as said officer, and on the third Monday of said month, in the evening thereof, he met with said board in session, and attempted to exercise his rights, privileges and franchises, on behalf of said ward and city, by voting to organize said board, in the election of president, clerk and treasurer of said board, and by participating-in the other necessary business of said body, but was unlawfully and forcibly prevented in the performance of said officials duties by the defendant, who was then and there neither a resident elector of said ward, or member of said board, but defendant did then and there, unlawfully, and with force, usurp the office place and membership of plaintiff, and against plaintiff’s will and protest, by voting for the election of said board officers, and participating in other business of said board.
    ‘ ‘ Said Harding voted for candidates to the offices aforesaid other than those for whom plaintiff would have voted, and defendant voted and acted as to the other business of the board differently to what plaintiff would have done, and with different results. Defendant’s votes and actions aforesaid were all accepted and recorded by a pretended president and clerk. All this to the detriment and irreparable injury of said seventh ward and city of Mansfield, and the electors and residents thereof, and of plaintiff, by defendant’s forcible usurpation of the rights, honors, privileges, franchises, and emoluments of the membership aforesaid.
    
      '‘Said board adjourned its session to meet again on the evening of the 16th day of April, 1895, and defendant is threatening that he will then and there, and thereafter continue his said usurpation and unlawful votes and action to the exclusion of plaintiff as aforesaid; and this complainant has good reason to believe, and does believe, that he will do so, and succeed in his attempt to deprive plaintiff of his membership, and prevent him from performing his official duties.
    “Wherefore, plaintiff prays that this court will grant a temporary injunction against defendant restraining’ him from participating in any way in the proceedings and business of said board, or interfering in anywise with the official business or membership of plaintiff until the final hearing of this case, when plaintiff asks that said injunction be decreed perpetual. ’ ’
    Upon the filing of this petition a temporary injunction was allowed, restraining the defendant from participating in the proceedings of the board
    Afterward, a demurrer to the petition was filed. Upon hearing, this was overruled, and judgment for plaintiff rendered. Appeal was taken by defendant to the circuit court, where the same holding was had and judgment rendered. Plaintiff in error asks reversal of that judgment.-
    
      D. Dirlam, for plaintiff in error.
    
      M. May, for defendant in error.
   By the Court:

The plaintiff below mistook his remedy. The petition' shows that Harding, and not Eichinger, was in possession of the office when the action was commenced. . Injunction may be resorted to by the incumbent of a public office to protect his possession against interference by an adverse claimant until the latter establishes his title, but is not the appropriate remedy to try the title. Reemelin v. Mosby, 47 Ohio St., 570.

Quo wa/rranto, is the proper form of remedy.

Judgment reversed, demurrer sustained, and petition dismissed-.

Reversed.  