Bennett v. Metropolis Pub. Co., 25336.

CourtCourt of Appeal of Missouri (US)
Citation148 S.W.2d 109
Docket NumberNo. 25336.,25336.
Decision Date04 March 1941
148 S.W.2d 109
No. 25336.
St. Louis Court of Appeals. Missouri.
March 4, 1941.
As Modified on Denial of Rehearing March 18, 1941.
Writ of Certiorari Granted May 2, 1941.

Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.

"Not to be reported in State Reports."

Action by R. Shad Bennett against the Metropolis Publishing Company for libel. From a judgment dismissing the action, following the sustaining of defendant's special demurrer, the plaintiff appeals.


Gus O. Nations, of St. Louis, for appellant.

Fordyce, White, Mayne, Williams & Hartman, of St. Louis (Evans, Mershon & Sawyer, of Miami, Fla., of counsel), for respondent.

SUTTON, Commissioner.

This is an action to recover damages for libel.

The petition alleges that defendant is a corporation organized and existing under and by virtue of the laws of the State of Florida, with its principal office and place of business at Miami, Florida, and engaged in the publishing business, particularly in the printing, distributing, and circulation of a newspaper named and known as the Miami Daily News; that defendant published in its newspaper two articles, on July 16, 1929, charging plaintiff with plotting the murder of one Oil King, a bankrupt butcher of West Frankfort, Illinois, in order to collect life insurance plaintiff held as security for a debt, and that said newspaper containing said libelous articles was widely distributed and read throughout the City of Miami and State of Florida and the City of St. Louis and State of Missouri; and prays judgment for $2,250 as actual damages and $750 as punitive damages, aggregating $3,000.

The petition was filed on July 15, 1931, and a writ of summons was thereupon issued.

On June 28, 1933, the cause was dismissed for failure to prosecute.

On August 31, 1933, the order of June 28, 1933, dismissing the cause for failure

148 S.W.2d 110

to prosecute, was set aside, and the cause was reinstated on the docket, and an alias summons was ordered issued. Pursuant to this order an alias summons was duly issued.

On October 27, 1933, plaintiff filed an affidavit for an attachment and a writ of attachment was ordered to issue. Pursuant to this order a writ of attachment was duly issued.

On October 13, 1938, on oral motion of the plaintiff, the cause was removed from the dismissal docket, on which it had been placed by the clerk, and an alias summons and alias writ of attachment were ordered to issue. Pursuant to this order an alias summons and alias writ of attachment were duly issued.

On December 9, 1938, on application of the plaintiff a pluries summons and pluries writ of attachment were ordered issued. Pursuant to this order such summons and writ were duly issued.

On December 19, 1938, on application of plaintiff, writs of summons and attachment were ordered issued to the sheriff of Cole County. Pursuant to this order such writs were duly issued.

On January 5, 1939, the summons was returned non est, and the writ of attachment was returned showing it was duly executed by garnishment.

On January 11, 1939, defendant entered its appearance and filed its answer to the petition.

On January 18, 1939, plaintiff having failed to give an attachment bond, the writ of attachment was dissolved.

On January 27, 1939, by leave, defendant withdrew its answer and filed a special demurrer to the petition, alleging as ground therefor that it appears on the face of the petition and the record of the proceedings in the cause that plaintiff's cause of action, if any he had, accrued more than two years before the commencement of the action, and that the action has become completely barred by the statutes of limitations of the states of Missouri and Florida, to wit, sec. 864, R.S.Mo.1929, Mo.St.Ann. § 864, p. 1152, and sec. 4663 of Compiled Laws of Florida, 1927.

Both of these statutes provide that an action for libel can only be commenced within two years after the cause of action shall have accrued.

On March 15, 1939, as shown by the short transcript filed here, the court sustained defendant's special demurrer and dismissed plaintiff's action.

On March 20, 1939, plaintiff filed an amended petition.

On March 28, 1939, plaintiff's amended petition was, on motion of defendant, stricken from the files.

Plaintiff appeals.

Plaintiff assigns error here for the action of the court in sustaining defendant's special demurrer to the petition.

It will be observed that plaintiff's amended petition was filed five days after the dismissal of his action. Obviously, it was properly stricken....

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14 cases
  • Johnson v. Frank
    • United States
    • United States State Supreme Court of Missouri
    • December 3, 1945
    ......1097; State ex. rel. Bair v. Producers Gravel Co., 341 Mo. 1106, 111. S.W.2d 521; Alexander v. Haffner, ...265; Mertens v. McMahon, 115 S.W.2d 180; Bennett v. Metropolis Pub. Co., 148 S.W.2d 109; State ex rel. ......
  • Moffett v. Commerce Trust Co.
    • United States
    • United States State Supreme Court of Missouri
    • February 11, 1946
    ...79 Mo. 314; Schuchman v. Heath, 38 Mo.App. 280; Field v. Natl. City Bank of St. Louis, 343 Mo. 419, 121 S.W.2d 769; Bennett v. Metropolis Pub. Co., 148 S.W.2d 109; State ex rel. v. Hughes, 155 S.W.2d 184; ex rel. v. Monarch Trans. & Storage Co., 20 S.W.2d 60. (5) The Circuit Court of Jackso......
  • Mayne v. Jacob Michel Real Estate Co.
    • United States
    • Court of Appeal of Missouri (US)
    • June 6, 1944
    ...decisions of the Supreme Court, and the writ was quashed. [State ex rel. Bennett v. Hughes, 348 Mo. 667, 155 S.W.2d 184.] Our ruling in the Bennett case finds support upon principles announced in analagous cases in this state. [Mertens v. McMahon (Mo. App.), 115 S.W.2d 180; Conrad v. McCall......
  • Bennett v. Metropolis Pub. Co.
    • United States
    • Court of Appeal of Missouri (US)
    • March 4, 1941
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