Harshaw v. Harshaw
| Decision Date | 08 October 1941 |
| Docket Number | 166. |
| Citation | 16 S.E.2d 666,220 N.C. 145 |
| Parties | HARSHAW v. HARSHAW et al. |
| Court | North Carolina Supreme Court |
This was an action for libel. The plaintiff sought to recover damages for the publication of alleged libellous matter contained in the written answers filed by the defendants in certain proceedings in the Superior Court of Caldwell County wherein it was stated that the plaintiff was the mother of two illegitimate children and had not been lawfully married to her late husband. It was alleged that the defamatory statements contained in the answers were not relevant to the issues nor available as a defense in those proceedings.
The defendants admitted that the statements set out in the complaint were contained in the answers referred to, but alleged that the matters complained of were stated in pleadings in court, and constituted pertinent and legitimate defenses to proceedings which involved the plaintiff's right to dower in the lands of J. M. Harshaw, her alleged husband, and the right of her children to share in the real estate as his heirs at law, and were therefore privileged.
Plaintiff offered evidence tending to show that she was lawfully married to J. M. Harshaw, and that her two children were born of this marriage; that after the death of her husband she and her two children instituted action in the Superior Court of McDowell County against these same defendants, who are the children of J. M. Harshaw by a former marriage, for the recovery of a death benefit fund due her as widow on the death of her husband, and also for the allotment of year's allowance for herself and her children; that this action was terminated by a consent judgment wherein she was adjudged entitled to a substantial part of the sums demanded and wherein was considered and adjudicated in her favor her claim for year's allowance as widow of J. M. Harshaw including allowance for her children; that in the judgment it was expressly recited that "plaintiff and defendants have agreed that the said Macon Ann Harshaw and Charles Edgar Harshaw the infant children of the plaintiff Charlie Mae Harshaw are the legitimate children of said J. M. Harshaw deceased," and it was further recited in the judgment that the action was for the purpose of having the rights of the parties relating to the plaintiff's year's support and to the death benefit fund," including all questions as to who is the lawful wife of said J. M. Harshaw and who are his lawful children, determined and established by the judgment of the court."
Plaintiff offered the judgment in evidence and testified she would not have consented to the signing of the judgment unless it had adjudged that she was the lawful widow, and her children declared to be the legitimate children, of J. M Harshaw.
Plaintiff offered the court records tending to show that subsequent to the rendition of the judgment referred to she instituted two proceedings in the Superior Court of Caldwell County, one for the assignment of dower, and the other on behalf of her two children for partition of lands of J. M. Harshaw in that county, and she introduced the answers filed by these defendants in both those proceedings in which were contained the defamatory matters set out in her complaint. Plaintiff was permitted to amend her pleading to conform to the proof by alleging that the defendants were estopped by the judgment in the Superior Court of McDowell County, in the suit between the same parties, wherein her marriage and the legitimacy of her children were judicially established.
At the conclusion of plaintiff's evidence, defendants' motion for judgment of nonsuit was allowed, and from judgment...
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