Ex Parte Nelson

• Decision Date: 02 June 1913
• Citation: 157 S.W. 794
• Parties: Ex parte NELSON.
• Court: Missouri Supreme Court

157 S.W. 794

Ex parte NELSON.

Supreme Court of Missouri.

June 2, 1913.

1. CONTEMPT (§ 9) — CRIMINAL CONTEMPT.

While a divorce action was pending before circuit judge G., defendant's newspaper printed an article entitled in the headlines, "Pay Fees before Alimony. The Lawyers must Collect First, Judge G. Decides. Three Attorneys Awarded $60.00 Each in a Suit for Divorce Which Never Came to Trial — Reverses a Former Ruling by Judge X." — and the body of the article recited, "If a woman brings suit for divorce the case cannot be dismissed until the husband has paid her attorney's fees; Judge G. made that ruling yesterday in favor of the divorce lawyers," in the suit named, and the article further recited that the attorney for the wife in such suit filed a motion to allow her alimony and attorney's fees, and when the motion was called the husband appeared with the request by his wife that the suit be dismissed as she wanted neither alimony nor attorney's fees, but that the wife's attorneys insisted that attorney's fees be paid, and the order of the circuit judge provided that the suit could not be dismissed for the wife until her attorneys were paid, and that in a similar proceeding recently the judge told the attorney that the husband could not pay both attorney's fees and alimony, and the article continued, "The Lawyer Decided. `Now which shall I allow,' the court asked of the lawyer, `the alimony to the woman or the fee to you?' `Just make the judgment for the fee,' the attorney requested, and the order was so made" — and that another judge of the circuit court had decided theretofore that a wife could dismiss her suit regardless of whether her attorney's fee had been paid, but that judge G. reversed such decision, and there "can be no reconciliations until lawyers have been paid. It is an important ruling in favor of the divorce lawyers." Held, that the article was not ambiguous and was highly contemptuous.

2. CONTEMPT (§ 58) — CRIMINAL CONTEMPT — INTENT OF ARTICLE.

While the sworn answer of contemner in a case of constructive contempt, denying an intention to prejudice the court, is conclusive on the question of contemptuous intent where the publication is ambiguous, if it is not ambiguous the publisher is conclusively intended to have meant what he clearly stated and cannot show the contrary.

3. LIBEL AND SLANDER (§ 5) — MALICE — PRESUMPTIONS.

If a publication is actionable per se, libelous intent and malice are conclusively presumed.

4. CONTEMPT (§ 9) — CRIMINAL CONTEMPT.

While the several divisions of the circuit court of Jackson county are distinct for some purposes, an article published concerning the judge of one division could not be construed to refer to the judge of any other division who did the act charged for the purpose of preventing it from being contemptuous as to the judge of the division to whom it expressly referred.

5. CONTEMPT (§ 60) — CRIMINAL CONTEMPT — ADMISSION OF EVIDENCE.

In a proceeding for criminal contempt of court by publishing an article relating to a pending divorce action, evidence that the writer of the article had no malice toward the judge, and that the owner of the paper had no knowledge of the publication, was admissible in mitigation of punishment, though not as substantive evidence.

6. CONTEMPT (§ 9) — CRIMINAL CONTEMPT.

An order dismissing a divorce action upon condition that attorney's fees be paid was not a final disposition of the case so that it was still pending so as to make a libelous and contemptuous article then published with reference to the case one published pending the suit.

7. CONTEMPT (§ 28) — CRIMINAL CONTEMPT — EXCUSES.

Mistake and want of intent are not a defense to the publication of an article which is contemptuous per se.

8. CONSTITUTIONAL LAW (§ 273) — DUE PROCESS OF LAW — TRIAL OF CONTEMPT ACTION.

Relator was cited for criminal contempt by publishing a contemptuous article relating to a divorce action pending before a circuit court judge, and the case was set for hearing on February 1st, the return to the citation having been filed on the morning of January 31st, and in the evening of that day the judge hearing the proceedings took the return home with him without notice to relator's counsel and proceeded to write an opinion finding relator guilty of contempt, and on the next day, when the case was set for trial, the judge excluded all offered testimony to explain the alleged contemptuous article, closed the case, and proceeded to read the opinion prepared the night before which began: "It was perfectly clear to me when I knew this matter was coming up for trial to-day, although the truth of the matter charged against this court was directly pleaded in the return, * * * that no testimony could be offered in the remotest way tending to prove the truth of the article in the respect wherein it is alleged in the complaint that it constituted a contempt." Held, that there was in fact no trial on the day set for trial; the judge having really decided the case the night before when he wrote the opinion, so that relator's conviction for contempt violated Mo. Const. 1875, art. 2, § 30, and U. S. Const. art. 14, § 1, relating to due process of law.

9. CONSTITUTIONAL LAW (§ 273) — DUE PROCESS OF LAW.

Mo. Const. art. 2, § 30, and U. S. Const. Amend. 14, § 1, guaranteeing due process of law, apply to every form of proceeding where life, liberty, or property is sought to be affected, including trials for criminal contempt before a judge, whether accused be guilty or not.

In Banc. Appeal from Circuit Court, Jackson County.

In the matter of habeas corpus proceedings by William R. Nelson. Writ granted, and relator discharged.

This is a proceeding by habeas corpus, instituted by the petitioner, William R. Nelson, the owner and publisher of the Kansas City Star, seeking to be released from the custody of the sheriff of Jackson county, who deprives him of his liberty under and by virtue of a commitment issued on a judgment rendered in Division No. 1 of the circuit court of said county, adjudging him guilty of contempt of court for printing and publishing in said paper, on January 26, 1913, a scurrilous and contemptuous article of and concerning said court, and of Judge Joseph A. Guthrie, the judge thereof, regarding certain rulings made by said court on January 25, 1913, in the case of Minnie L. Clevinger v. Claud F. Clevinger, duly pending therein.

The facts of the case are substantially as follows:

At all the times mentioned herein Judge Guthrie was the duly elected, qualified, and acting judge of the circuit court of Jackson county, and was at the January term thereof assigned to and was occupying the bench and discharging the duties of said judge in Division No. 1 of said court. That term began on January 13th and ended March 8th of that year. At that time there was pending in said division of said court the divorce suit of Clevinger v. Clevinger, previously mentioned, in which the wife was the plaintiff. Her attorneys filed a motion therein asking the court to allow them a reasonable sum as attorneys' fees for their services performed therein; and at the same time there was pending in said division a written motion, signed by the plaintiff, asking that the case be dismissed, which was, by counsel for defendant, presented to the court. The latter motion was contested, evidence heard, and after due consideration the court on January 25, 1913, made and entered in said cause the following order (caption and formal entries omitted):

"Now on this day the motion of House and Manard and W. J. Allen for an allowance for attorney's fees in this cause is taken up, submitted to the court, and after being fully advised in the premises said motion is by the court sustained to the extent of allowing said attorneys the sum of $60 for their services as attorneys for plaintiff in this cause. And, it appearing to the court that plaintiff has filed a written request that this cause be dismissed, it is ordered by the court that upon the payment of said sum of $60 to the clerk of this court, to be used for the purpose of paying the attorneys, the amount allowed for their services herein on behalf of plaintiff, this cause be dismissed. It is further ordered by the court that defendant pay the costs incurred by said motion for allowance of attorney's fees herein."

The Kansas City Star is a daily newspaper published in Kansas City, owned and edited by the petitioner, William R. Nelson. The Star is published in the afternoon of every day, except Sunday, on which day it is published in the morning. On Sunday morning, the 26th day of January, 1913, the day after said order was made in the Clevinger Case, there was printed and published in the Kansas City Star an article of which the following is a copy:

"The Lawyers must Collect First Judge Guthrie Decides.

"Three Attorneys Awarded $60 Each in a Suit for Divorce Which Never Came to Trial — Reversed a Former Ruling by Judge Goodrich.

"If a woman brings a suit for divorce the case cannot be dismissed in the circuit court until the husband has paid her attorney his fee. Judge Guthrie made that ruling yesterday in favor of the divorce lawyers in the suit of Minnie Clevinger against Claud F. Clevinger.

"After Mrs. Clevinger filed her suit her attorney filed a motion asking the court to allow her alimony and attorney's fee. When the motion was called a few days ago Mr. Clevinger appeared in court with a request signed by his wife that the suit be dismissed, as she wanted neither alimony nor attorney's fee.

"Fees Claimed by Three.

"Her attorneys insist that they be allowed their fee before the case was dismissed and asked that Mr. Clevinger be required to pay it, even though the wife desired to dismiss the suit. Judge Guthrie gave them a judgment for $40 against Mr. Clevinger. Then another attorney, making three attorneys in all, came into court and said he also represented Mrs. Clevinger. The matter was...