Freeman v. Tinsley

• Decision Date: 30 June 1869
• Parties: JOHN D. FREEMANv.JOHN W. TINSLEY.
• Court: Illinois Supreme Court

50 Ill. 497

1869 WL 5261 (Ill.)

JOHN D. FREEMAN

v.JOHN W. TINSLEY.

Supreme Court of Illinois.

June Term, 1869.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Clinton county; the Hon. SILAS L. BRYAN, Judge, presiding.

This was an action for slander, commenced by the appellee, against the appellant, in the Circuit Court of Marion county. The cause was removed into the Circuit Court of Clinton county by change of venue, where a trial resulted in a verdict for the plaintiff below for $2,500. The defendant thereupon took this appeal. The opinion of the court contains a sufficient statement of the case, for a proper understanding of the questions decided.

Mr. W. STOKER, for the appellant.

Messrs. CASEY & DWIGHT and Mr. T. S. CASEY, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

It is first urged, that the court erred in refusing to grant a continuance of the cause. The motion was based upon the affidavit of appellant. It states that appellant can prove by one Gray, who was in the penitentiary, facts material to his defense, under the issues; that the facts came to his knowledge from Gray, but a few days before court convened, and too late to take his deposition; that appellant expected to be able to procure Gray's deposition by the next term of court. The practice is rigid in requiring an affidavit for a continuance to clearly and unequivocally show diligence on the part of the person who asks it. Loose, vague and uncertain averments as to the evidence intended to be produced, or the diligence employed for its attainment, are not held sufficient on such applications. In this case, the affidavit only states that appellant learned the facts by letter from Gray, on the day named. He does not state that he did not know from other sources before that time that he could prove the facts by Gray. From anything that appears from the affidavit, he may have been fully apprised of the facts for months before the trial. In this respect the affidavit was insufficient, and there was no error in overruling the motion.

The refusal of the court to give appellant's eighth instruction is assigned for error, and relied upon for a reversal. It is this:

“The court instructs the jury for the defendant, that if you believe, from the evidence, that the proof offered by defendant, to sustain his plea of justification, tended to prove said plea, you should consider that circumstance in arriving at your conclusions, as to whether said plea was honestly and in good faith pleaded by defendant, believing that he could sustain the same by the evidence.”

To which ruling of the court, in refusing to give said instruction, the defendant then and there excepted.

It is the well recognized doctrine of this court, that where a plea of justification is filed without an honest belief that it can be sustained, it only aggravates the slander--that it is a new publication of the defamation, and should, therefore, aggravate the damages. On the contrary, however, if the plea is filed in good faith, it should never produce that result. And to determine that question, the jury should consider all of the circumstances under which the plea was filed. This, then, rendered the instruction proper, as it announced the true rule on that question. But it is urged that the fifth instruction given for appellant does not state the same principle. That instruction informed them, that if they believed the plea was filed honestly and bona fide, it should not aggravate the damages. The fifth instruction announces, although not so specifically, the same rule as that contained in the eighth, and we are clearly of the opinion that it was sufficiently explicit to have been fully understood by the jury, and rendered the giving of the eighth instruction unnecessary.

Nor do we perceive that appellee's second is repugnant to appellant's fifth instruction. They both announce correct legal principles. If appellant had no expectation of proving the justification when he filed his plea, it was but a repetition of the slander, and was such an aggravation as should have increased the...