Harper v. Harper

• Decision Date: 08 December 1874
• Citation: 73 Ky. 447
• Parties: Harper v. Harper.
• Court: Kentucky Court of Appeals

Page 447

73 Ky. 447

Harper v. Harper.

Court of Appeals of Kentucky.

December 8, 1874.

APPEAL FROM SCOTT CIRCUIT COURT.

A. J. JAMES, A. DUVALL, For Appellant.

GEORGE R. McKEE, BLACKBURN & TWYMAN, JAMES E. CANTRILL, For Appellee.

JUDGE COFER DELIVERED THE OPINION OF THE COURT.

The appellant brought an action of slander against the appellee, and verdict and judgment having been rendered against him, and his motion for a new trial having been overruled, he has appealed.

It is insisted for the appellee that the bill of exceptions copied into the record was not filed in the circuit court within the time prescribed by law, and that it can not therefore be considered by this court. This question must be first decided; for if the point be well taken, the judgment must be affirmed without reference to other questions.

The trial took place at the March term, 1873, of the Scott Circuit Court, and within three days after the verdict and judgment were rendered the appellant filed grounds and moved the court for a new trial, which motion was continued until the September term, when it was overruled and time given until the fifth day of the next term to file a bill of exceptions. On the second day thereafter the order overruling the motion for a new trial was set aside and the cause was continued; but no notice was taken of that part of the order giving time until the fifth day of the next term to file a bill of exceptions. At the succeeding term, March, 1874, the motion for a new trial was again overruled; to which appellant excepted, and from which he prayed an appeal; and on the third day thereafter — to wit, March 7th — which was the sixth day of the term, a bill of exceptions was signed by the court and made part of the record.

Counsel for the appellee insist, first, that the order made at the March term, 1873, allowing time until the fifth day of the next term not having been set aside, and the bill of exceptions not having been filed until the sixth day of the next term, came too late; secondly, that the order at the September term, 1873, overruling the motion for a new trial related back to the preceding March term, and became an order as of that term, and the court had no power to set it aside; and thirdly, that the court had no power to extend the time for filing the bill of exceptions beyond the September term, 1873.

Section 364 of the Civil Code provides that "the party objecting to a decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the succeeding term."

It is argued that as the judgment sought to be reversed was rendered at the March term, 1873, time to reduce the exceptions to writing could not be extended beyond the succeeding term, which was the September term, 1873.

The error in this position consists in regarding the judgment on the verdict, and not that overruling the motion for a new trial, as the judgment appealed from.

When an appeal is prosecuted from a judgment on a verdict without a motion for a new trial having been made and overruled nothing is brought before this court except the pleadings, verdict, and judgment; and if the pleadings and verdict authorized the judgment rendered, it will be affirmed without regard to the rulings of the court at the trial further than they appear in the judgment.

But when a motion for a new trial is made it is the duty of the circuit court to review all its rulings during the trial which were excepted to by the unsuccessful party, and grant a new trial if error has been committed to his prejudice; and if the court fails to do so and overrules the motion, the order will be erroneous because of the previous errors, and this court will reverse the order, and remand the case with directions to award a new trial.

The motion for a new trial having been overruled at the March term, 1874, and the bill of exceptions signed and made part of the record during that term, it was in time.

The court had the same power over the order overruling the motion for a new trial at the September term that it had over any other order of that term; and although the order allowing time until the fifth day of the next term to file a bill of exceptions was not set aside, it was annulled by setting aside the residue of that order; for the court had no power as long as the motion for a new trial was pending to prescribe the time within which the bill of exceptions should be filed. We are therefore of opinion that the bill of exceptions is a part of the record and must be considered in determining the appeal, and we proceed to the consideration of the questions arising on the whole record.

The petition consists of two paragraphs. The first contains this language: "The plaintiff, Adam W. Harper, states that on the __ day of September, 1871, in the county of Woodford, Jacob and Betsey Harper were murdered; and afterward, on the __ day of ____, the defendant, J. Wallace Harper, when speaking of said murder in the presence and hearing of divers persons, spoke concerning the plaintiff these slanderous words: `Adam W. Harper and John Harper were at the head of the murder of Jacob and Betsey Harper.'"

In the second paragraph it is charged that "on another occasion, when speaking of said murder of Jacob and Betsey Harper, the defendant, J. Wallace Harper, in the presence of divers other persons, spoke concerning the plaintiff these other slanderous words: `I believe Adam W. Harper and his son John murdered Jacob and Betsey Harper, and all the neighbors believe it; and I told Adam W. Harper I believed it was so.'"

To the first paragraph the appellee answered, simply denying that he spoke the words charged. To the second paragraph he answered in two paragraphs; and the court having sustained a demurrer to the last paragraph, he withdrew the second and filed an amended answer to the second paragraph of the petition, in which "he denies that he uttered the words or language set out in the second clause or paragraph of plaintiff's petition; . . . . but states that when interrogated and questioned by Adam W. Harper and others concerning said murder he did use the following language and words, to wit: `All the neighbors believe that Adam W. Harper and his son John were engaged in the murder of Jacob and Betsey Harper, and I am bound to believe it until he proves himself clear;' which said words were not maliciously spoken, but under the following circumstances." Then follows a lengthy statement of circumstances, supposed, in a greater or less degree, to point to the guilt of the appellant of participation in the murder. The answer then concludes in these words: "And at the same time he uttered the words as above admitted many and divers citizens of Woodford County were engaged in trying to discover who were the murderers, as it was their duty to do, and in the careful prosecution of their inquiries many of said citizens had expressed the opinion and belief that Adam W. Harper was guilty of said murder; that such expression of opinion on the part of said citizens was not malicious, but solely in the interchange of views expressed in the careful prosecution of the inquiries aforesaid; that the defendant did not express any opinion on the subject, and refused to concur in the belief of others until a considerable time had been spent in said inquiry, and until after the suspicious facts hereinbefore set forth had been ascertained to be true; and he was reluctantly compelled to believe that said Adam W. Harper was guilty of said murder. He so expressed himself, in good faith and an honest belief of the truth of what he was saying, to the plaintiff and prudent persons in confidence, with an honest view and purpose; not with malice, nor with the intention of doing a wrongful act, but solely in the discharge of a high moral and social duty, with a view that the investigation might progress and the offenders might be detected and brought to justice, and in so doing he but repeated the expressions and opinions of others; and so he says he did not speak said words maliciously, and is not guilty in manner and form as alleged by plaintiff."

The appellant demurred to the amended answer, and also moved to strike out of it all that part which purported to plead facts constituting the grounds of appellee's belief that the appellant was guilty of the murder; but the court overruled both the demurrer and motion to strike out; to which the appellant excepted. On this state of the pleadings a trial was had, which resulted, as already stated, in a verdict and judgment for the defendant.

The first question presented is as to the correctness of the rulings of the court on the demurrer and motion to strike out. So far as the amended answer is responsive to the second paragraph of the petition, it is a denial of the speaking of the words charged in that paragraph. The words admitted, although they make the same charge in substance as...