Armond v. Fine

• Decision Date: 19 June 1916
• Docket Number: 18044
• Citation: 72 So. 145,111 Miss. 737
• Court: Mississippi Supreme Court
• Parties: DE ARMOND v. FINE

72 So. 145

111 Miss. 737

DE ARMOND v. FINE

No. 18044

Supreme Court of Mississippi

June 19, 1916

APPEAL from the circuit court of Jones county, HON. J. B. JOHNSON Judge.

Suit by Mrs. Ada De Armond, against Nathan Fine. There was a judgment for plaintiff which was set aside and a new trial granted defendant, and from judgment of dismissal on defendant's motion, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Case reversed.

R. L Bullard, for appellant.

Stone Deavours and D. B. Cooley, for appellee.

OPINION

SYKES, J.

Suit was instituted by the appellant, Mrs. De Armond, against Nathan Fine, appellee, in the circuit court of the Second district of Jones county for the sum of twenty-five thousand dollars damages for slander, based upon the actionable-word section of the Code of 1906 (section 10). The defendant denied uttering the slander. The issues were properly submitted to a jury, resulting in a verdict and judgment for the plaintiff in the sum of three thousand, five hundred dollars. Before the institution of the suit, the plaintiff Mrs. De Armond, had assigned to certain attorneys a one-half undivided interest in whatever sum of money became due her by virtue of her claim against the defendant. The attorneys mentioned in this assignment, however, did not represent the plaintiff in the trial in the court below, but assigned the assignment to the attorneys of record of the plaintiff; which arrangement was consented to by the plaintiff.

Judgment was entered in favor of the plaintiff upon the verdict of the jury for the sum of three thousand, five hundred dollars, and defendant thereupon filed his motion for a new trial. The record does not show that any testimony was introduced upon a hearing of this motion; but the motion was sustained, and the judgment and verdict set aside, and a new trial granted the defendant. To all of which proceedings the plaintiff, through her attorneys, objected and duly excepted. A special bill of exceptions was taken to the action of the court in setting aside the judgment and verdict of the first trial. At a subsequent term of court, the defendant filed five special pleas, all alleging in substance that, since the institution of the suit, the plaintiff had in writing voluntarily withdrawn her suit and released the defendant from any liability on account thereof. An alleged copy of this release and withdrawal was attached as an exhibit to the special pleas, reading as follows:

"Mrs Ada De Armond, Plaintiff, v. Nathan Fine, Defendant. No. 744.

"In the Circuit Court of the Second District of Jones County, Mississippi.

"I, Ada De Armond, plaintiff in the above-styled suit here and now voluntarily withdraw my said suit against Nathan Fine; and discharge and release the said Nathan Fine from any and all liability on account of the matters and things alleged and set forth in said declaration filed in said suit; and discharge and release the said Nathan Fine from any and all liability, of whatsoever kind or character, to me as plaintiff in the above-styled suit.

"I withdraw and discontinue the said suit against the said Nathan Fine, because I believe the said suit was wrongfully brought, and I further believe that the said Nathan Fine did not utter the false, scandalous and defamatory words alleged to have been used by him in said suit.

"Witness my signature this the 26th day of March, 1914.

MRS. ADA DE ARMOND.

"Witness: T. T. Terry."

A replication to these pleas was duly filed by the plaintiff, denying, in substance, the facts set out in said pleas. A motion was then made by the attorneys of the defendant to withdraw all of the special pleas, which motion was sustained by the court. A motion to dismiss the suit was then made by the attorneys for the defendant, and attached to this motion to dismiss was an alleged copy of the release or petition to withdraw her-case, purporting to have been signed by the plaintiff. Without hearing any testimony whatever upon this motion, and over the protest and objection of counsel for the plaintiff, the motion was sustained and the case dismissed, to which action of the court the attorneys for the plaintiff duly objected and excepted, and from which judgment of dismissal this appeal is prosecuted.

A careful examination of the record in this case does not disclose that there were any errors committed either in the introduction of testimony or in the instructions granted to both the plaintiff and defendant on the first trial. We are therefore unable to find in the record any errors upon which the judgment of the court in favor of the plaintiff should have been set aside.

The copy of the paper attached to the motion of counsel for defendant to dismiss the suit seems to have been of a twofold nature, viz., partaking somewhat of the nature of a release and, second, being in the nature of a petition to withdraw or dismiss her...