Dean v. Kirkland

• Decision Date: 25 October 1939
• Docket Number: Gen. No. 40499.
• Citation: 23 N.E.2d 180,301 Ill.App. 495
• Parties: DEAN v. KIRKLAND ET AL.
• Court: United States Appellate Court of Illinois

301 Ill.App. 495

23 N.E.2d 180

DEAN

v.KIRKLAND ET AL.

Gen. No. 40499.

Appellate Court of Illinois, First District, Third Division.

Oct. 25, 1939.

Appeal from Circuit Court, Cook County; Walter J. LaBuy, Judge.

Action by Julia Moone Dean against Weymouth Kirkland and others, and John L. Kellogg, for damages resulting from action of defendant in defending an action by the plaintiff against defendant John L. Kellogg for defamation by means of false and malicious pleadings and false and malicious testimony. From a judgment striking the amended complaint and dismissing the cause, the plaintiff appeals.

Affirmed.

E. C. Frank Meier, of Chicago, for appellant.

Kirkland, Fleming, Green, Martin & Ellis, Jay Frederick Reeve, and J. B. Martineau, all of Chicago, for appellees.

BURKE, Justice.

In June, 1927, plaintiff Julia E. Moone filed an action in the Superior Court of Cook County against John L. Kellogg, and therein sought to recover damages for alleged slanderous remarks. On June 6, 1936 (while that action was pending), plaintiff, as Julia Moone Dean, filed her amended complaint in the instant action in the Circuit Court of Cook County. The members of the law firm of Kirkland, Fleming, Green, Martin & Ellis, an associate of that firm named J. B. Martineau and one Jacob Manassa, described as an investigator, Theodore Hardeen, Jr., an attorney not connected with the said firm, and John L. Kellogg (the defendant in the Superior Court case) were named as defendants. John L. Kellogg was the only one served with summons in the instant case. He entered his appearance and filed a written motion to dismiss the amended complaint. On April 27, 1938, the Circuit Court of Cook County entered an order striking the amended complaint and dismissing the cause at plaintiff's costs. At that time the court also declined to allow the plaintiff to file a second amended complaint. This appeal is prosecuted from the judgment dismissing the amended complaint.

The amended complaint consists of one count. It arises out of the slander action filed against John L. Kellogg in the Superior Court of Cook County. The law firm mentioned was hired to defend that action, and according to the amended declaration filed herein, appeared in behalf of John L. Kellogg, and filed certain pleas therein, “admitted the utterances by the said John L. Kellogg of the slanderous remarks attributed to him and laid to his charge in the declaration in said cause, and filed in addition thereto special pleas claiming justification for alleging that they were true in substance and in fact, and claiming said publication was with good motives and without malice and for justifiable ends, and that said John L. Kellogg in said cause, claimed to have been reliably informed and honestly believed that this plaintiff, who is also the plaintiff in said cause alleged in Paragraph 4, was a crook and not an honest person and could not be trusted in business transactions, that she was a woman who induced people to pay her money to which she was not entitled, and that she was a dangerous person with whom no person could safely have business dealings, all of which allegations and pleas said defendants knew to be false and malicious.” The amended complaint, which we will hereafter designate as the complaint, is (according to plaintiff's brief) grounded on what she charges to be “an unlawful undertaking or conspiracy to seek unlawful gains by lawful means, tainted with false and malicious motives.” She charges that the defendants wickedly intended to injure and falsely defame the reputation of the plaintiff and to bring the plaintiff into disrepute and to impute dishonest and criminal conduct on her part and to maliciously and falsely defeat her just right to recover against John L. Kellogg in the action for defamation; that they wickedly and maliciously conspired to and did procure various persons to maliciously and knowingly give false testimony in derogation of plaintiff's reputation, to the end that said John L. Kellogg might prove the pleas that he was justified in uttering the alleged slanderous words; and that the defendants perpetrated the specific acts charged in pursuance of the malicious intent and purpose of the alleged conspiracy. She charges that in furtherance of the conspiracy said Kellogg, together with one Loring V. Estes, during the spring of 1930, gave one John F. Pottinger the sum of $100 in cash and told him to obtain from plaintiff a certain brown bag; that Pottinger gave the $100 to one Dan Charett, to whom the mission was intrusted; that the bag was the property of plaintiff and contained certain documents of great value to plaintiff in the litigation then pending in the Superior Court; that Charett procured a bag other than the bag that was sought; that when the bag was brought to Kellogg he recognized that it was not the bag that was sought and directed Pottinger to destroy the bag. The complaint recites that defendants caused a notary public in and for Cook County to issue subpoenas for the purpose of taking depositions and that the law firm sent defendant Martineau and one Al Parrish, who has since died, and defendant Kellogg, to Cincinnati, Ohio, where defendants Kellogg and Martineau interviewed one Howard Blaney on March 22, 1933. The complaint charges that they attempted to induce Blaney to testify falsely against plaintiff and offered Blaney a considerable sum of money if he would so testify and procure other witnesses to testify falsely against plaintiff. The complaint also recites that on April 26, 1933, pursuant to the alleged conspiracy, defendant Martineau approached Meyer L. Cherkas, who was then an attorney for plaintiff, and sought to induce Cherkas to withdraw as such attorney by declaring to him that “Mrs. Dean is a woman not worthy of consideration, and she is a woman of bad repute and cannot be trusted”, and invited Cherkas to come to his (Martineau's) office where he would prove the bad reputation of plaintiff; that the appearance of Charles M. Haft as attorney for plaintiff was entered in the defamation action, and that defendant Howard Ellis informed said Haft that he had abundant proof of the truth of the alleged slanderous utterances about which plaintiff complained, and charged that such statements by Ellis were made with the intent to cause Haft to withdraw as attorney for plaintiff; that defendant Manassa, in a conversation with Lieutenant Charles C. Essig of the Chicago Police Department, invited Lieutenant Essig to come to the law firm's offices, where he would prove to him that plaintiff was a woman of bad repute and not worthy of credit or belief, and that she was a blackmailer and a crook; that J. Fred Reeves, a member of the defendant law firm, appeared before a judge of the Municipal Court of Chicago, accompanied by said Martineau and said Manassa, in a case there pending entitled People of the State of Illinois v. Florabella Pack, wherein plaintiff was the prosecuting witness, and in which the defendant therein was charged with perjury in the taking of a deposition in the cause on the Superior Court, and said: “ ‘I am representing the firm of Kirkland, Fleming, Green & Martin, my associate, Mr. Martineau of that firm is also here. We are not representing Miss Pack; her attorney is Mr. Hardeen. The reason I am here is, we represent Mr. Kellogg,’ and further stated, ‘I am stating though, to Mr. Haft and this lady (referring to the plaintiff) that if there is an application for another warrant, that if there has been obvious perjury here, and some action may be asked for against this lady.’ ” The complaint alleged that the meaning of such statement, made in open court in the presence of about one hundred persons, was that plaintiff had committed perjury; that it was meant and intended by such statement to intimidate plaintiff against proceeding further in her defamation case, and to injure the character and reputation of plaintiff, and plaintiff avers that there was a technical error in the complaint filed in the Municipal Court of Chicago against Florabella Pack; that the Assistant State's Attorney on duty in that branch of the court asked leave to amend, which leave was denied, and that such denial was because of the remarks of said Reeves, and that because thereof the State's Attorney was obliged to and did nolle prosequi the case; that no evidence was heard in said proceeding; that the defendant therein, Florabella Pack, was discharged; that thereupon Theodore Hardeen, Jr., maliciously intending to injure plaintiff, and with the knowledge, consent and approval of the defendant law firm, brought an action against plaintiff in the Superior Court of Cook County in the sum of $50,000, charging plaintiff with maliciously prosecuting said Florabella Pack upon an alleged false charge of perjury; that on January 21, 1935, plaintiff and her attorney Charles W. Haft, interviewed Assistant State's Attorney Thomas E. Butler, in his official capacity as an assistant to the State's Attorney of Cook County, and complained to him (for presentation to the Grand Jury) of the facts and circumstances of the alleged perjury of said Florabella Pack; that said Butler requested plaintiff to exhibit to him the telegrams and pleadings in the defamation case and the deposition taken therein of Florabella Pack, and that said Butler indicated that there was probable cause for the prosecution of said Florabella Pack on the charge of perjury; that on or about February 20, 1935, defendant Manassa, in the presence of Assistant State's Attorney Butler, Lieutenant Essig, Mr. Haft, plaintiff's attorney, and another woman, declared to the said assistant state's attorney that he was not there representing Florabella Pack, but that he was representing the defendant law firm; that no perjury had been committed by Florabella Pack, and that Mrs. Dean was a blackmailer. Continuing, the complaint declares that in the action for malicious prosecuti...