Dowd v. Winters

• Decision Date: 31 January 1855
• Citation: 20 Mo. 361
• Parties: DOWD, Appellant, v. WINTERS, et al., Respondents.
• Court: Missouri Supreme Court

20 Mo. 361

DOWD, Appellant,

v.WINTERS, et al., Respondents.

Supreme Court of Missouri.

January Term, 1855.

1. An allegation in a petition for slander that the defendant charged the plaintiff with swearing falsely in a judicial proceeding between A., plaintiff, and B., defendant, is sustained by proof of such a proceeding between A., plaintiff, and B. and C., defendants. (Hibler v. Servoss, 6 Mo. 24, affirmed.)

2. The supreme court will not refuse to set aside a non-suit taken upon the rejection of material evidence necessary to the plaintiff's recovery, because the record does not show that the plaintiff was prepared with proof upon the other material facts of the case, or because the evidence may possibly have been rejected for the reason that it was offered out of the order of time prescribed by the court trying the cause.

Appeal from Weston Court of Common Pleas.

This was an action of slander against Jacob Winters and Elizabeth, his wife. The petition states that Mrs. Winters had charged the plaintiff with false swearing, and that this charge was made in reference to material testimony given by the plaintiff upon the trial of a certain cause between the city of Weston, plaintiff, and Elizabeth Winters, defendant, lately had before Thompson Ward, mayor of the city of Weston, who had jurisdiction of the cause and was authorized to administer oaths. The answer put in issue the jurisdiction of the mayor and the materiality of the testimony given by plaintiff. At the trial, the plaintiff offered in evidence the record of a proceeding of the city of Weston against Jacob Winters and Elizabeth Winters. The court excluded this record, whereupon the plaintiff took a non-suit.

Hall, for appellant, cited Hibler v. Servoss, (6 Mo. 24,) upon the point that there was no variance.

Gardenhire, for respondent, insisted that the non-suit ought not to be set aside because the record contained no evidence whatever in relation to the jurisdiction of the court and the materiality of the testimony, both of which were necessary to a recovery. The plaintiff ought to have offered enough evidence to induce a reasonable belief that he could recover if put back in court again. At least, he should have offered the evidence necessary to show that the rejected evidence was competent.

LEONARD, Judge, delivered the opinion of the court.

The facts put in issue by the pleadings are the jurisdiction of the mayor's court, and the materiality of the testimony given upon the trial there.

In the briefs submitted to us, it has been...