Dimitry v. Levy

• Decision Date: 01 March 1926
• Docket Number: 27447
• Citation: 161 La. 11,108 So. 107
• Court: Louisiana Supreme Court
• Parties: DIMITRY v. LEVY et al

108 So. 107

161 La. 11

DIMITRY v. LEVY et al

No. 27447

Supreme Court of Louisiana

March 1, 1926

Rehearing Denied March 29, 1926

Appeal from First Judicial District Court, Parish of Caddo; E. P Mills, Judge.

Action by M. D. Dimitry against J. H. Levy and others. From a judgment dismissing the suit, plaintiff appeals.

Judgment affirmed.

Albert P. Garland, of Shreveport, for appellant.

Clifton F. Davis and Joseph H. Levy, both of Shreveport, for appellees.

OPINION

ST. PAUL, J.

On May 8, 1924, Mrs. Marion Beattie (now deceased) through her attorneys, Joseph H. Levy and Clifton F. Davis (who are the defendants here), filed her certain petition in the district court of Caddo parish, in the matter entitled "Mrs. Marion Beattie v. M. D. Dimitry et al.," No. 37509 of the docket of said court; and out of the filing of that petition comes this action for libel.

I.

The petition so filed (and now annexed to the present plaintiff's petition) contains 51 articles, and covers 28 pages of this transcript; but the substance thereof, so far as pertinent to the issues involved herein, may be stated in very few words.

Thus: She (Mrs. Beattie) charges that this plaintiff, who is a member of the bar, practicing at Shreveport, entered into a conspiracy with two other members of the bar, and with certain parties "pretending" to be the collateral relations and heirs at law of one Mrs. Florence A. Toombs, then lately deceased at Shreveport, to defraud her (the said Mrs. Beattie) out of the estate of the said Mrs. Toombs, to wit, by pretending that the last will and testament of the said Mrs. Toombs, by which she (Mrs. Beattie) was given the whole estate of some $ 80,000 (less a legacy of $ 5,000 to another) was a forgery, and that she (Mrs. Beattie) had forged it; and that, by means of threats of both civil and criminal proceedings against her, they succeeded in forcing her to compromise with said pretended heirs by giving them her notes for $ 60,000, secured by mortgage on the property belonging to the estate. Wherefore she prays that the compromise be annulled and the said notes be declared void.

Which petition was duly "verified" by the petitioner in person.

II.

The petition in this case represents that all the aforesaid charges of conspiracy and fraud aforesaid are untrue; but, "because the other slanderous charges [to wit, conspiracy and fraud] made in said petition are pertinent to the issues therein presented, he cannot at this time sue for the damages caused him thereby, but he reserves his right to hereafter prosecute his action for damages."

III.

The petition represents, however, that:

"The charges in article 13 of said petition were and are altogether immaterial, irrelevant, and not pertinent to the issues presented in said petition; and are false, slanderous, libelous, and malicious; and were known by the said defendants [Levy and Davis] to be irrelevant, false, and slanderous; and were made by them maliciously for the purpose of embarrassing and prejudicing petitioner in the defense of the other serious charges therein made against him, which he will prove to be false on the trial of that suit."

Which article 13 of said petition is as follows, to wit:

"That although the said E. Barnett, Esq. [one of the other two attorneys], was appointed attorney for absent heirs [in the matter of the succession of Mrs. Toombs], as heretofore stated, he did not himself attempt to locate or trace any of the said heirs as required by law, but on the contrary associated himself in an unlawful private venture with one M. D. Dimitry, an attorney at this bar, for the purpose of locating the pretended heirs of the said Mrs. Toombs, urging them to litigate with your petitioner, and for the purpose of entering into a contract of employment with them to annul and set aside the will of the said Mrs. Toombs; all in violation of R. S. [1870] 118, which prohibits the fomenting of lawsuits, and also in violation of the code of ethics of the bar of the state of Louisiana, which prohibits the soliciting of business by members of the bar of this state." (Italics ours.)

IV.

The petition further charges:

"That said charges in article of said petition [although duly "verified" as aforesaid] were conceived by, and written into said petition by, the said Joseph H. Levy and Clifton F. Davis, acting jointly and in concert, as their own charges against petitioner, and for the purpose above mentioned [see paragraph III above] without any suggestion to that effect by their clients." (Italics ours.)

The petition further sets forth:

That said charges were widely circulated in the newspapers, and that "petitioner believes, and therefore alleges, that said newspaper articles were inspired, and caused to be printed, by said Levy and Davis for the purpose of injuring petitioner's professional standing and prejudicing his defense of the other serious charges," etc.

Wherefore petitioner prays for judgment in damages against said Levy and said Davis.

V.

To this petition defendants filed a plea of prematurity, and an exception of no cause of action.

The trial judge overruled the plea of prematurity, but sustained the exception of no cause of action and dismissed the suit.

Plaintiff appealed; and defendants have answered the appeal, praying that the plea of prematurity be sustained, and in the alternative that the judgment be affirmed.

VI.

We find it unnecessary to consider the plea of prematurity, although it does appear that plaintiff was not a party defendant to that suit, notwithstanding that the suit was filed with his name figuring in the title thereof as the main defendant. For whether such title was given to the suit by these defendants, or by their clients, for reasons satisfactory to themselves, or only by the clerk of court through inadvertence, or otherwise (for this does not appear from the transcript), the fact yet...