Chapter 2733: QUO WARRANTO

2733.01 Proceedings against a person.

A civil action in quo warranto may be brought in the name of the state:

(A) Against a person who usurps, intrudes into, or unlawfully holds or exercises a public office, civil or military, or a franchise, within this state, or an office in a corporation created by the authority of this state;

(B) Against a public officer, civil or military, who does or suffers an act which, by law, works a forfeiture of his office;

(C) Against an association of persons who act as a corporation within this state without being legally incorporated.

Cite as R.C. § 2733.01

Effective Date: 10-01-1953

2733.02 Proceedings against a corporation.

A civil action in quo warranto may be brought in the name of the state against a corporation:

(A) When it has offended against a law providing for its creation or renewal, or any amendment thereof;

(B) When it has forfeited its privileges and franchises by nonuser;

(C) When it has committed or omitted an act which amounts to a surrender of its corporate rights, privileges, and franchises;

(D) When it has misused a franchise, privilege, or right conferred upon it by law, or when it claims or holds by contract or otherwise, or has exercised a franchise, privilege, or right in contravention of law;

(E) When any application for a license to transact business in this state filed by a foreign corporation, any articles of incorporation of a domestic corporation or any amendment to them, or any certificate of merger or consolidation which set forth a corporate name prohibited by the Revised Code, has been improperly approved and filed.

Cite as R.C. § 2733.02

Effective Date: 06-15-1978

2733.03 Jurisdiction and venue in quo warranto actions.

An action in quo warranto can be brought only in the supreme court, or in the court of appeals of the county in which the defendant, or one of the defendants, resides or is found, or, when the defendant is a corporation, in the county in which it is situated or has a place of business. When the attorney general files the petition, such action may be brought in the court of appeals of Franklin county.

Cite as R.C. § 2733.03

Effective Date: 10-01-1953

2733.04 Commencing quo warranto.

When directed by the governor, supreme court, secretary of state, or general assembly, the attorney general, or a prosecuting attorney, shall commence an action in quo warranto. When, upon complaint or otherwise, either of such officers has good reason to believe that any case specified in section 2733.02 of the Revised Code can be established by proof, he shall commence such action.

Cite as R.C. § 2733.04

Effective Date: 06-15-1978

2733.05 Bringing action.

The attorney general or a prosecuting attorney may bring an action in quo warranto upon his own relation, or, on leave of the court, or of a judge thereof in vacation, he may bring the action upon the relation of another person. If the action is brought under division (A) of section 2733.01 of the Revised Code, he may require security for costs to be given as in other cases.

Cite as R.C. § 2733.05

Effective Date: 10-01-1953

2733.06 Usurpation of office.

A person claiming to be entitled to a public office unlawfully held and exercised by another may bring an action therefor by himself or an attorney at law, upon giving security for costs.

Cite as R.C. § 2733.06

Effective Date: 10-01-1953

2733.07 Prosecution in absence of prosecuting attorney.

When the office of prosecuting attorney is vacant, or the prosecuting attorney is absent, interested in the action in quo warranto, or disabled, the court, or a judge thereof in vacation, may direct or permit any member of the bar to act in his place to bring and prosecute the action.

Cite as R.C. § 2733.07

Effective Date: 10-01-1953

2733.08 Petition against person for usurpation of office.

When an action in quo warranto is brought against a person for usurping an office, the petition shall set forth the name of the person claiming to be entitled to the office, with an averment of his right thereto. Judgment may be rendered upon the right of the defendant, and also on the right of the person averred to be so entitled, or only upon the right of the defendant, as justice requires.

All persons who claim to be entitled to the same office or franchise may be made defendants in one action, to try their respective rights to such office or franchise.

Cite as R.C. § 2733.08

Effective Date: 10-01-1953

2733.09 Leave to file petition - notice.

Upon application for leave to file a petition in an action in quo warranto, the court or judge may direct notice thereof to be given to the defendant previous to granting such leave, and may hear the defendant in opposition thereto. If leave is granted, an entry thereof shall be made on the journal, or the fact shall be indorsed by the judge on the petition, which shall then be filed.

Cite as R.C. § 2733.09

Effective Date: 10-01-1953

2733.10 Issue of summons and service.

When the petition in an action in quo warranto is filed without leave and notice, a summons shall issue, and be served as in other cases. Such summons may be sent to and returned by the sheriff of any county by mail. The sheriff is entitled to the same fees thereon as if it had been issued and returned in his own county.

Cite as R.C. § 2733.10

Effective Date: 10-01-1953

2733.11 Service by publication.

When a summons in an action in quo warranto is returned not served because the defendant, or its officers or office, cannot be found within the county, the clerk of the court in which the action was brought must publish a notice for four consecutive weeks in a newspaper published and of general circulation in the county, setting forth the filing and substance of the petition. Upon proof of such publication the default of the defendant may be entered and judgment rendered thereon, as if he had been served with summons.

Cite as R.C. § 2733.11

Effective Date: 10-01-1953

2733.12 Pleadings after petition.

The defendant in an action in quo warranto may demur or file an answer, which may contain as many several defenses as he has, within thirty days after the filing of the petition, if it was filed on leave and notice, or after the return day of the summons. The plaintiff may file a demurrer or a reply to such answer within thirty days thereafter.

Cite as R.C. § 2733.12

Effective Date: 10-01-1953

2733.13 Court may extend time for pleading.

In an action in quo warranto an order may be made by the court, or by a judge thereof, extending the time within which a pleading may be filed. Such order does not work a continuance of the case.

Cite as R.C. § 2733.13

Effective Date: 10-01-1953

2733.14 Judgment when office, franchise, or privilege is usurped.

When a defendant in an action in quo warranto is found guilty of usurping, intruding into, or unlawfully holding or exercising an office, franchise, or privilege, judgment shall be rendered that he be ousted and excluded therefrom, and that the relator recover his costs.

Cite as R.C. § 2733.14

Effective Date: 10-01-1953

2733.15 Judgment when director of a corporation is illegally elected.

When an action in quo warranto is against a director of a corporation, and the court finds that, at his election, illegal votes were received or legal votes rejected sufficient to change the result, judgment may be rendered that the defendant be ousted, and of induction in favor of the person who was entitled to be declared elected.

Cite as R.C. § 2733.15

Effective Date: 10-01-1953

2733.16 New election.

In a case under section 2733.15 of the Revised Code the court may order a new election to be held at a time and place and by judges it appoints. Notice of the election and naming such judges shall be given as provided by law for notice of elections of directors of the corporation. The order of the court is obligatory upon the corporation and its officers when a duly certified copy is served upon its secretary personally, or left at its principal office. The court may enforce its order by attachment, or as the court deems necessary.

Cite as R.C. § 2733.16

Effective Date: 10-01-1953

2733.17 Rights of person adjudged entitled to an office.

If judgment in an action in quo warranto is rendered in favor of the person averred to be entitled to an office, after taking the oath of office and executing any official bond required by law, he may take upon him the execution of the office. Immediately thereafter such person shall demand of the defendant all books and papers in his custody or within his power appertaining to the office from which the defendant has been ousted.

Cite as R.C. § 2733.17

Effective Date: 10-01-1953

2733.18 Action for damages.

Within one year after the date of a judgment mentioned in section 2733.17 of the Revised Code, the person in whose favor the judgment is rendered may bring an action against the party ousted, and recover the damages he sustained by reason of such usurpation.

Cite as R.C. § 2733.18

Effective Date: 10-01-1953

2733.19 Enforcement of judgment.

No defendant mentioned in section 2733.17 of the Revised Code shall refuse or neglect to deliver over any book or paper pursuant to a demand made under such section. Whoever violates this section is guilty of a contempt of court.

Cite as R.C. § 2733.19

Effective Date: 10-01-1953

2733.20 Judgment when corporation has forfeited its rights.

When, in an action in quo warranto, it is found and adjudged that, by an act done or omitted, a corporation has surrendered or forfeited its corporate rights, privileges, and franchises, or has not used them during a term of five years, judgment shall be entered that it be ousted and excluded therefrom, and that it be dissolved.

When it is found and adjudged in such case, that a corporation has offended in a matter or manner that does not work such surrender or forfeiture, or has misused a franchise, or exercised a power not conferred by law, judgment shall be entered that it be ousted from the continuance of such offense or the exercise of such power.

When it is found and adjudged in such case, that any application for a license to transact business in this state filed by a foreign corporation, any articles of incorporation of a domestic corporation or any amendment to them, or any certificate of merger or consolidation which set forth a corporate name prohibited by the Revised Code has been improperly approved and filed, judgment shall be entered that the corporation be ousted from the continued use of such corporate name.

Cite as R.C. § 2733.20

Effective Date: 10-16-1980

2733.21 Dissolution of corporation - appointment of trustees by court.

The court rendering a judgment dissolving a corporation as provided in section 2733.20 of the Revised Code shall appoint a trustee or trustees, not exceeding three in number, for the benefit of the creditors and stockholders thereof, who shall each give an undertaking payable to this state, in such sum and with such sureties as the court designates and approves, conditioned that they will faithfully discharge their respective trusts in accordance with the orders of such court or of the court to which such quo warranto proceedings may be remanded, as provided in section 2733.22 of the Revised Code, and properly pay and apply all money and other property that comes into their hands as such trustees, in accordance with such orders.

Cite as R.C. § 2733.21

Effective Date: 10-01-1953

2733.22 Remanding to court of common pleas.

Upon the appointment and qualification of trustees under section 2733.21 of the Revised Code, the supreme court, or the court of appeals in which the quo warranto proceedings have been instituted, may remand the proceedings to the court of common pleas of the county in which the corporation has or last had its principal place of business for further proceedings. When the proceedings are remanded, the court of common pleas has full jurisdiction, and the same power with reference thereto as the supreme court or court of appeals would have had if such proceedings had not been remanded. The jurisdiction of the supreme court or court of appeals over the proceedings ceases upon such remand.

Cite as R.C. § 2733.22

Effective Date: 10-01-1953

2733.23 Order of court.

Any party to a quo warranto proceeding against a corporation, including trustees appointed as provided in section 2733.21 of the Revised Code, may appeal from any order made in such proceedings in the same manner as in civil cases. The orders of the court in which such proceedings are instituted or to which they are remanded are binding upon the trustees, stockholders, creditors, and other persons interested in such corporation, unless reversed by appropriate proceedings.

Cite as R.C. § 2733.23

Effective Date: 10-01-1953

2733.24 Duties of trustees as to notice of court order.

Upon the appointment and qualification of trustees under section 2733.21 of the Revised Code, they shall forthwith give notice of the order dissolving the corporation, of their appointment as trustees, and of the date of their appointment, by publication once a week for four consecutive weeks in a newspaper of general circulation in the county in which the corporation has or had its principal place of business. Such notice shall require all persons having claims against the corporation to file them with such trustees within ninety days from the date of their appointment. All claims not filed within ninety days from the date of the appointment shall be barred as against such trustees and the property of the corporation, unless the court, for good cause shown, orders otherwise.

Cite as R.C. § 2733.24

Effective Date: 10-01-1953

2733.25 Rejected claims.

If, in the judgment of the trustees appointed as provided in section 2733.21 of the Revised Code, any claims filed with them as provided in section 2733.24 of the Revised Code are for any reason not valid claims against the estate of the corporation, the trustees shall notify the claimants that their respective claims are rejected by written notice by registered mail, directed to the claimants' last known address. Such claimants, at any time within ninety days from the mailing of such notice of rejection, may sue such trustees for the recovery of such claims in any court of competent jurisdiction in the county in which such corporation has or had its last principal place of business. Should such suit finally terminate in favor of the claimant, the judgment therein obtained by him is entitled to share with other claims against the corporation, in the manner and to the same extent as if the claim had been allowed in the first instance by the trustees. Upon the failure of a claimant to bring suit within ninety days from the date of the mailing of the notice that it is rejected by the trustees, the claim is barred against the trustees or the property of the corporation, unless the court for good cause shown orders otherwise.

Cite as R.C. § 2733.25

Effective Date: 10-01-1953

2733.26 Powers of trustees.

The trustees appointed as provided in section 2733.21 of the Revised Code are subject to the orders of the court appointing them or of the court to which the quo warranto proceedings are remanded, and are vested with the title to all the property, real and personal, of the corporation from the date of their appointment and qualification, and subject to the orders of the court may settle the affairs of the corporation, collect and pay outstanding debts, and divide among the stockholders the money and other property which remains after the payment of debts and necessary expenses. Said trustees may file in the court of their appointment, or in the court to which such proceedings are remanded, motions, applications for instructions or orders, and other pleadings. In the enforcement of any demands said trustees have all rights which the stockholders or creditors of the corporation might otherwise be entitled, to enforce, in addition to the rights of the corporation itself. The stockholders and creditors of such corporation may not enforce any such rights except upon the refusal of such trustees to do so within a reasonable time upon demand therefor by such stockholders and creditors.

Cite as R.C. § 2733.26

Effective Date: 10-01-1953

2733.27 Demands by trustees.

Trustees, upon their appointment and qualification as provided in section 2733.21 of the Revised Code, shall forthwith demand all money, property, books, deeds, notes, bills, obligations, and papers of every description within the custody, power, or control of the officers of the corporation or any other persons, belonging to the corporation, or in any way necessary for settlement of its affairs or for the discharge of its debts and liabilities. Such trustees, without leave of court, may sue for and recover in the name of such trustees the demands and property of the corporation, and they are severally liable to the creditors and stockholders to fully and faithfully administer their respective trusts, in accordance with the orders of the court.

Cite as R.C. § 2733.27

Effective Date: 10-01-1953

2733.28 Report to court.

The trustees shall, as soon as possible after their appointment under section 2733.21 of the Revised Code, prepare and report to the court a statement of assets and liabilities of the corporation. At such times as are ordered by such court, the trustees shall report to it their proceedings as such trustees. Upon collecting such assets as are collectable and disbursing them to the approval of such court, the trustees and their sureties, by order of such court, shall be discharged from any further liability in the premises.

Cite as R.C. § 2733.28

Effective Date: 10-01-1953

2733.29 Prohibition against refusing to deliver property of corporation to trustees.

No officer of a corporation shall refuse or neglect to deliver over money, or other things, pursuant to a demand made by the trustees as provided in section 2733.27 of the Revised Code. Any officer violating this section is guilty of contempt of court. Such officer is also liable to the trustees for the value of all money, or other things, so refused or neglected to be surrendered, together with the damages sustained by the stockholders and creditors of the corporation in consequence of such neglect or refusal.

Cite as R.C. § 2733.29

Effective Date: 10-01-1953

2733.30 Costs.

If, in an action in quo warranto, judgment is rendered against a corporation, or against a person claiming to be a corporation, the court may render judgment for costs against the directors or other officers of the corporation, or against the person claiming to be a corporation.

Cite as R.C. § 2733.30

Effective Date: 10-01-1953

2733.31 Order to deliver property enforced.

In an action in quo warranto, when judgment is rendered against the defendant, the court may make an order directing him forthwith to deliver over the books, papers, property, money, deeds, notes, bills, and obligations to the persons entitled thereto, or to the trustees appointed to receive them, and may send a transcript of the proceedings, including a copy of such order, to the court of common pleas of the proper county, with a special mandate directing such court to carry it into effect. On complaint being made to such court of common pleas, by affidavit, of a neglect or refusal to comply with such order, that court shall direct an attachment to issue for the defendant, returnable forthwith, who may be required to answer under oath touching the premises. If it appears that the defendant neglects or refuses to comply, the court shall render judgment for penalty or imprisonment, or both, such as the court making the order might have rendered.

Cite as R.C. § 2733.31

Effective Date: 10-01-1953

2733.32 Injunction in certain cases.

A stockholder, or stockholders, owning not less than one fourth of the capital stock of a banking association actually paid in, or entitled to the beneficial interest therein, pending proceedings in quo warranto against such association, may have an injunction restraining the directors thereof from making any disposition of the assets of such association prejudicial to the interests of such stockholders, or inconsistent with their duties as directors.

Cite as R.C. § 2733.32

Effective Date: 10-01-1953

2733.33 Court may require bank directors to give security.

Upon satisfactory proof that the directors of a banking association mentioned in section 2733.32 of the Revised Code have violated or are about to violate any of its franchises, the court, or a judge thereof in vacation, may require the directors to give security to the stockholders, to the satisfaction of the court or judge, for the proper discharge of their duties and the management and security of the assets. Such court or judge may enjoin the directors from incurring any additional liabilities except for the payment of the necessary services of the officers and employees of the banking association, the amount of which, while the quo warranto proceedings are pending, shall be under the control of the court.

Cite as R.C. § 2733.33

Effective Date: 10-01-1953

2733.34 Enjoining directors from borrowing or issuing money.

On petition, the court or judge may enjoin the directors of a banking association mentioned in section 2733.32 of the Revised Code from borrowing or issuing, directly or indirectly, any of the money or assets of such bank, for their individual benefit, while the quo warranto proceedings are pending.

Cite as R.C. § 2733.34

Effective Date: 10-01-1953

2733.35 Limitations.

Actions in quo warranto against a corporation for forfeiture of its charter shall be commenced within five years after the act complained of was done or committed. No action in quo warranto shall be brought against a corporation for the exercise of a power or franchise under its charter, which it has used and exercised for a term of twenty years. No action in quo warranto shall be brought against an officer to oust him from his office, unless it is brought within three years after the cause of such ouster, or the right to hold the office, arose.

Cite as R.C. § 2733.35

Effective Date: 10-01-1953

2733.36 Action for damages against officers of ousted corporations.

When, in an action in quo warranto, judgment of forfeiture and ouster is rendered against a corporation because of misconduct of the officers or directors thereof, within one year thereafter a person injured thereby, in an action against such officers or directors, may recover the damages he has sustained by reason of such misconduct.

Cite as R.C. § 2733.36

Effective Date: 10-01-1953

2733.37 Remedies cumulative.

Sections 2733.01 to 2733.39 , inclusive, of the Revised Code do not restrain a court from enforcing the performance of trusts for charitable purposes, at the relation of the prosecuting attorney of the proper county, or from enforcing trusts or restraining abuses in other corporations, at the suit of a person injured.

Cite as R.C. § 2733.37

Effective Date: 10-01-1953

2733.38 Disposition of fines.

Fines collected under section 2733.99 of the Revised Code shall be paid into the treasury of the proper county for the use of the schools as provided in section 3315.32 of the Revised Code.

Cite as R.C. § 2733.38

Effective Date: 10-01-1953

2733.39 Actions to have precedence.

Actions in quo warranto have precedence over other civil business. If the matter is of public concern, on motion of the attorney general or prosecuting attorney the court shall require as speedy a trial of the merits of the case as is consistent with the rights of the parties.

Cite as R.C. § 2733.39

Effective Date: 10-01-1953

2733.99 Penalty.

(A) Whoever violates section 2733.19 or 2733.29 of the Revised Code shall be fined not more than ten thousand dollars and imprisoned in the county jail until he complies with the order of the court, or is otherwise legally discharged.

Cite as R.C. § 2733.99

Effective Date: 10-01-1953