Mary Nalle v. James Oyster

• Decision Date: 16 June 1913
• Docket Number: No. 218,218
• Citation: 230 U.S. 165,57 L.Ed. 1439,33 S.Ct. 1043
• Parties: MARY E. NALLE, Plff. in Err., v. JAMES F. OYSTER, William V. Cox, Mary C. Terrell. Justina R. Hill, Ellen S. Mussey, and Barton W. Evermann
• Court: U.S. Supreme Court

230 U.S. 165

33 S.Ct. 1043

57 L.Ed. 1439

MARY E. NALLE, Plff. in Err.,

v JAMES F. OYSTER, William V. Cox, Mary C. Terrell. Justina R. Hill, Ellen S. Mussey, and Barton W. Evermann.

No. 218.

Submitted April 16, 1913.

Decided June 16, 1913.

Messrs. John C. Gittings and Justin Morrill Chamberlin for plaintiff in error.

[Argument of Counsel from pages 166-168 intentionally omitted] Messrs. Clarence R. Wilson and Reginald S. Huidekoper for defendants in error.

[Argument of Counsel from pages 168-172 intentionally omitted] Mr. Justice Pitney delivered the opinion of the court:

This is a writ of error to review a judgment affirming a judgment of the supreme court of the District in favor of the defendants in an action for libel and conspiracy.

The declaration contains two counts, the first of which avers that the plaintiff was a teacher and a member of the body of teachers in the public schools of the District of Columbia, and that the defendants, without probable cause, but contriving and maliciously intending to injure plaintiff in her character and reputation as a school teacher, wrongfully and maliciously composed and published and filed in the clerk's office of the supreme court of the District, as their answer in a legal proceeding wherein they and others composing the board of education were named as defendants, a certain false, scandalous, and defamatory libel concerning the plaintiff in respect of her profession, the purport of which was that the defendants and others composing the board of education found upon examination that the plaintiff 'was not sufficiently qualified in all respects to continue to teach' in the public schools, but was 'deficient in the necessary academic and pedagogic equipment of a competent teacher,' so that the board of education were unable lawfully to continue her in employment.

The second count recites that the plaintiff was and for more than thirty years had been earning her livelihood as a teacher and member of the body of teachers of the public schools of the District of Columbia, and the defendants and others constituted the board of education as provided for by the act of Congress approved June 20, 1906 [34 Stat. at L. 316, chap. 3446], by which it is, among other things, enacted that when a teacher is on trial or being investigated she shall have the right to be attended by counsel; that certain untrue charges concerning plaintiff's moral character and reputation were under investigation by the board; that without notice to her, or an opportunity for a hearing, the board dismissed her from the rolls as a teacher, assigning as a reason that this was done for the good of the service; that, feeling aggrieved, and having failed to secure redress by a petition direct to the board, plaintiff petitioned the supreme court of the District for a writ of mandamus to compel the board to reinstate her; that the defendants, intending to wrong and injure her in her right to employment in the line of her occupation and calling, and specifically to prevent her from securing the writ of mandamus to reinstate her to her position and to the emoluments of her office as a member of the body of teachers of the public schools, entered into an unlawful agreement and conspiracy among themselves to ruin the plaintiff, and specifically to prevent her from obtaining her proper redress as prayed for in the mandamus proceedings, and to cause it to be believed by the public in general that she was deficient in the necessary academic and pedagogic equipment of a competent teacher, and thereby prevent her from securing employment as such; that in pursuance of the conspiracy the defendants maliciously composed and published, and filed in the clerk's office of the supreme court of the District, a paper purporting to be their answer and the answer of other members of the board of education, which contained certain false and scandalous libel concerning the plaintiff in her profession as a school teacher (the alleged libelous matter being set forth and being of the same tenor and purport as that alleged in the first count), the defendants knowing at the time that the facts alleged in the libel were false; all of which was done in pursuance of the alleged unlawful agreement and conspiracy; that thereby the plaintiff was prevented from securing a fair and impartial hearing in the mandamus proceedings, was prevented from being reinstated to her office as a member of the body of teachers of the public schools and receiving the emoluments thereof, and has been greatly injured in her good name and character, etc.

To the first count defendants interposed a demurrer, upon the ground that the alleged libelous matter was privileged. The demurrer was sustained.

To the second count defendants filed two pleas. Of these, the first sets up the proceedings and judgment in the supreme court in the case of The United States of America ex rel. Mary E. Nalle, Relator, v. George W. Baird and others, Respondents, on plaintiff's petition for a writ of mandamus to restore her to the rolls as a teacher (being the same proceeding in which the alleged libelous matter was filed as the answer of the board of education), and avers that afterwards, by the consideration and judgment of the court, and upon an issue necessarily involved in the cause and litigated therein between the parties, and identical with the causes of action herein given, it was ordered that the writ of mandamus be and it was thereupon denied, as by the record appears, a copy of which is attached to the plea and made a part of it.

The second plea to the second count sets up the former adjudication in a different form, averring the facts more elaborately, and including a special reference to the alleged libelous matter under circumstances such as to lay the foundation for a claim that it was privileged. This plea avers that at the time alleged in the second count of the declaration, and for a long time before, the defendants constituted the board of education of the District, in

See United States ex rel. Nalle v. Hoover, 31 App. D. C. 311 which was vested the control of the public schools under the laws of the United States; that plaintiff was and for a long time had been a teacher in the public schools; that the defendants as the board of education, acting in accordance with the laws and by virtue of the authority vested in them as such board, dismissed her from the position of teacher; that afterwards she impleaded the defendants in the supreme court of the District, upon a petition for a writ of mandamus for her restoration to the rolls as a teacher in the public schools; that thereafter the defendants, as respondents in the action of mandamus, filed an answer in the supreme court in that suit, and in that answer, 'and upon a matter material, relevant, pertinent, and necessarily involved in said cause and litigated therein between the said parties, set up the identical matters and writings complained of in the present suit, and thereupon set up in said answer and as a response to the allegations of said petition the following writing upon which this present suit is based, to wit' (here repeating the alleged libel); that such proceedings were thereafter had in the action of mandamus that by the consideration and judgment of the court, and upon an issue necessarily involved in the cause litigated therein between the parties, it was ordered that the writ of mandamus be and it was denied and the petition dismissed, as by the record appears, a copy of which is attached to and made a part of the plea, which judgment still remains in full force, etc., concluding with a verification.

To both pleas, the plaintiff demurred. Her demurrers were overruled, and as she elected to stand upon them, judgment final was entered against her.

The court of appeals of the District affirmed the judgment (36 App. D. C. 36), and the present writ of error was sued out.

The questions argued are: Whether the first count of the declaration was properly sustained against the demurrer interposed to it on the ground that the alleged libelous matter was privileged; and whether res judicata or privilege was well pleaded to the second count.

The court of appeals declined to go into the question of privilege, ignoring the first count because no exception was taken by the plaintiff to the ruling of the court sustaining the demurrer thereto; and ignoring the question of privileged communication raised by the second plea to the second count because the judgment against the plaintiff on that count could be sustained on the plea of former adjudication.

Respecting the necessity for an exception to the court's ruling in sustaining the demurrer to the first count, counsel for defendants in error have not attempted to uphold the position taken by the court of appeals. The court cited no statute, rule, or other authority for its position, and we have been unable to find any.

The practice of bills of exceptions is statutory. By the ancient common law, a writ of error lay only for an error in law apparent upon the judgment roll,—what is now called the 'strict record,'—or for an error in fact, such as the death of a party before judgment. See Green v. Watkins, 6 Wheat. 260, 262, 5 L. ed. 256, 257. For an erroneous decision that did not appear upon the record there was no redress by writ of error. To relieve this, the statute of Westminster 2, 13 Edw. I, chap. 31 (1 Eng. Stat. at L. 99; Bacon, Abr., title 'Bill of Exceptions'), was enacted more than six hundred years ago, providing that one who alleged an exception should write it out and require the justices to put their seals to it, and that if upon review 'the exception be not found in the roll, and the plaintiff show the written exception, with the seal of the justices thereto put, the justice shall be commanded to appear, etc., and if he cannot deny his seal they shall proceed to the judgment according to the exception,' etc. Under this...