Hyde v. McCabe

• Decision Date: 19 May 1890
• Citation: 100 Mo. 412,13 S.W. 875
• Parties: HYDE v. McCABE.
• Court: Missouri Supreme Court

13 S.W. 875

100 Mo. 412

HYDE v. McCABE.

Supreme Court of Missouri.

May 19, 1890.

LIBEL — PRIVILEGED COMMUNICATIONS.

Where an affidavit, on a motion to require plaintiff to give security for costs, alleges that affiant believes plaintiff to be insolvent, and plaintiff's attorney files a counter-affidavit, denying the insolvency, and alleging the affidavit in support of the motion was "a corrupt, voluntary, and willful case of false swearing," such averment in the counter-affidavit is not sufficiently relevant to the issue to be privileged. BARCLAY, J., dissenting.

Appeal from St. Louis circuit court.

This case comes here by appeal from a ruling by the trial court, sustaining a general demurrer to plaintiff's petition. The exact case presented will best appear from the petition itself, which is as follows, viz.: "Plaintiff states that he is a deputy-clerk of the circuit court, city of St. Louis; and that in said position and calling, as well as in others of a similar character, he has always been of good name and fame; that as such deputy it was his duty to examine into the matter of the solvency, domicile, and ability of suitors in said court, with reference to the payment of costs of suits instituted by them, and to make affidavit of the result of his said examination and inquiry, to be filed in support of motions made by the sheriff and said clerk in said suits for security for costs, under rule No. 4 of said court, which rule constituted such affidavits sufficient evidence to support said motions, in the absence of any counter-affidavits controverting the same; but that, upon the filing of such counter-affidavits, the issue of facts thus presented should be determined by the court; that, in the discharge of his duty aforesaid, he examined into the subject-matter of the motion of said clerk, and of the sheriff of said city, filed in the case of Charles D. McClure v. F. Kerens, then pending in said court, wherein said court was asked to enter a rule against the plaintiff, requiring him to give security for costs in said court, on the ground that he was insolvent, and so unsettled as to endanger the officers of said court, with respect to their legal demands; that in support of said motion, and in pursuance of his duties, plaintiff made and filed an affidavit in said case, wherein he stated that he had examined into the subject-matter of said motion, and that the facts as aforesaid stated in said motion were true, to the best of his knowledge and belief; that afterwards, on or about the 24th day of November, 1886, the defendant, being an attorney of said McClure in said case, verified, signed, and filed his counter-affidavit, wherein he states (as he was privileged to do, if supported by sufficient evidence) that said McClure was not insolvent, and that he was possessed of large means, a portion of which consisted of real estate on Broadway and Washington avenue, St. Charles and Vandeventer place, in St. Louis, and that plaintiff had never examined into the subject-matter of said motion; but the defendant, maliciously intending and craftily contriving to injure and damage this plaintiff in his good name and fame, falsely and maliciously incorporated into his said affidavit, signed and sworn to as aforesaid, and as the concluding language thereof, the following false, malicious, and unprivileged accusation against this plaintiff, — that is to say: `But that the affidavit of said Hyde is a corrupt, voluntary, and willful case of false swearing;' meaning that this plaintiff, in his affidavit aforesaid, was guilty of corrupt, voluntary, and willful perjury. Plaintiff states that he has been greatly injured in his said occupation...