41 Wis. 329 (Wis. 1877), Kimball v. Fernandez

Citation:41 Wis. 329
Opinion Judge:ORSAMUS COLE, J.
Party Name:KIMBALL v. FERNANDEZ and another
Attorney:Briefs were filed by Felker & Weisbrod for the appellants, and by Finch & Barber for the respondent; and the cause was argued orally by C. W. Felker for the appellants, and by Charles Barber for the respondent.
Court:Supreme Court of Wisconsin

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41 Wis. 329 (Wis. 1877)



FERNANDEZ and another

Supreme Court of Wisconsin

January, 1877

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APPEAL from the Circuit Court for Winnebago County.

Action for libel. The words charged were published in the defendants' newspaper entitled "The Oshkosh Times," and were as follows:

"KIMBALL SELLING POST OFFICES.--MARKESAN, October 3d, 1876.--EDS. TIMES: We are so accustomed to hear of bribery and corruption among officials of the party in power, that they beget no surprise unless they come near home. When I state that A. M. Kimball was paid $ 200 for his influence in procuring the appointment of a postmaster, I am only stating what is susceptible of proof. In November of last year, 1875, he received $ 200 from a person residing on the line of road from Stevens Point to Portage, known as the Wisconsin Central. The bargain was made and the money paid over on Sunday next following Thanksgiving day. How will honest people relish sending back to congress a man who makes appointments a source of personal revenue, and how will the moral class of people feel about again placing a man in this responsible position, who makes such contracts and takes his pay on Sundays? The gentleman who paid the money received the appointment, but he had to pay $ 50 more than a competitor for the same position. How is that for post-traderships at home?"

The complaint sets out the publication of these words, with proper allegations bye way of inducement, colloquium, and innuendoes; and it alleges "that the defendants published said article with intent to charge this plaintiff with violating the statutes of the United States relative to members of congress directly or indirectly receiving or taking money or property from some person or persons, for procuring or aiding to procure an office or place from the United States or department thereof for some person, and with intent to cause it to be believed that this plaintiff had violated said sec. 1781 of the revised statutes of the United States, and was thereby guilty of a misdemeanor and liable to the punishment by said section prescribed; and that said article was so understood by those who read it."

The answer alleged various matters, which may be thus classified: 1. The second and third paragraphs merely charge plaintiff with incompetency as a representative in congress from his district. 2. The defendants admit the publication of the words charged, but deny that they were published maliciously, and also deny that they were false and defamatory, and allege that they were true. 3. As to so much of the said publication as charges that the plaintiff, while acting as a member of congress, received $ 200 for his influence in procuring for a certain person the office of postmaster, the defendants allege that the same is true, and name one Barker as the person for whom such office had been procured by the plaintiff for the sum named. 4. The answer then charges the plaintiff at some length with having procured himself to be renominated for congress at...

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