McKinney v. Cooper

Citation163 Or. 512,98 P.2d 711
PartiesMcKINNEY <I>v.</I> COOPER
Decision Date30 January 1940
CourtSupreme Court of Oregon
                  See 17 R.C.L. 335 (6 Perm. Supp., 4254)
                  36 C.J. Libel and Slander, § 236
                

Appeal from Circuit Court, Lake County.

T.E.J. DUFFY, Judge.

Action by T.S. McKinney against Forest E. Cooper to recover damages resulting from an alleged libel. From a judgment dismissing the action, plaintiff appeals.

AFFIRMED.

Herbert P. Welch, of Lakeview, for appellant.

Henry E. Perkins, of Klamath Falls, for respondent.

BELT, J.

This is an action to recover damages resulting from an alleged libel published of and concerning the plaintiff. A demurrer to the complaint was sustained on the ground that no cause of action was alleged. On refusal of the plaintiff to plead further, a judgment was entered dismissing the action. Plaintiff appeals.

The plaintiff in his complaint alleges:

"That plaintiff is a citizen and resident of Lakeview, County of Lake, State of Oregon, and is now, and was, during all the times herein mentioned, a regularly licensed attorney at law in the State of Oregon, with offices in Lakeview, Oregon.

"That on or about the 10th day of February, 1931, Harry S. Stone was appointed by the County Court of Lake County, Oregon, Executor of the Last Will and Testament of Lewis A. Carriker, Deceased, and held such position until the 26th day of February, 1935, when he resigned as such Executor; that on the 26th day of February, 1935, he filed with County Clerk of Lake County, Oregon, his final account and report as Executor of said estate.

"That during the time between the ____ day of June, 1933, and the said 26th day of February, 1935, plaintiff herein was attorney for the said Harry S. Stone as Executor of said estate.

"That on the 27th day of February, 1935, W.W. Switzer was appointed by the County Court of Lake County, Oregon, Administrator with the Will Annexed of the Last Will and Testament of Lewis A. Carriker, Deceased, and ever since said time the said W.W. Switzer has been, and now is, the duly qualified and acting Administrator of said estate.

"That on or about the 27th day of February, 1935, the defendant herein became attorney for the said W.W. Switzer as Administrator of said estate, and ever since said date the said defendant has been, and now, is acting as attorney for the said W.W. Switzer as such Administrator.

"That on the 15th day of June, 1935, the said defendant caused to be filed with the County Clerk of Lake County, Oregon, objections in writing to the final account and report of the said Harry S. Stone Executor resigned of the Last Will and Testament of the said Lewis A. Carriker, Deceased, and in said list of objections so filed, among other things, it is alleged that the said Harry S. Stone appropriated money and property of the said estate to his own personal use, and it is further alleged in various and divers places in said list of objections that the said Harry S. Stone stole various articles or items of personal property from the said estate while he was acting as such Executor.

"That in the list of objections so filed by the said defendant, particular objection was made to the allowance of an item of $249.50 which had been paid by the said Harry S. Stone to plaintiff on account of attorney's fees for services performed for said Harry S. Stone, as Executor of said estate; and in filing said objection the defendant caused the following libel to be published of and concerning this plaintiff to-wit:

`That for a sixteenth objection to the final account and administration of Harry S. Stone, executor resigned, the objectors allege:

I.

`The objectors object to the following items of expenditure set forth in said final account on page 14 thereof, to-wit: "February 23, 1935, T.S. McKinney, attorney fees $249.50," and in support of such objection further allege:

II.

`That services of such value were not rendered by the said T.S. McKinney to the estate.

III.

`That at all times that said T.S. McKinney was retained as attorney for the executor resigned, he owed a duty to disclose to the devisees and legatees of the estate the true condition thereof whenever requested for such information. That he was at all times entitled to payment for services rendered the estate, with funds of the estate, a fact which he well knew, and therefore, owed a duty to the devisees and the legatees as well as to their representative, the executor resigned.

IV.

`That on May 1, 1934, a conference was held in the office of the said T.S. McKinney, attorney at law, at Lakeview, Oregon, at which there were present the said T.S. McKinney; the executor resigned; Lewis N. Wiley, one of the devisees and legatees of the last will and testament of Lewis A. Carriker, deceased, and one of the objectors; Lester K. Vandever, attorney at law, Hillsboro, Illinois, then and there acting as attorney for most of the devisees and legatees of the estate; and Forrest E. Cooper, attorney at law, Lakeview, Oregon, then and there serving in a similar capacity.

V.

`That one subject then and there discussed was ways and means of obtaining an appeal bond in the case of C.V. Vandiver and wife versus the executor resigned and all of the beneficiaries of the estate. The executor resigned and the said T.S. McKinney then and there stated that the bonding companies had refused to write the bond. They were then and there asked if it were not true that the estate had cash then and there on deposit in the Commercial National...

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14 cases
  • Ramstead v. Morgan
    • United States
    • Oregon Supreme Court
    • December 16, 1959
    ...463 (1909). The absolute immunity attaches to statements made in the course of, or incident to a judicial proceeding. McKinney v. Cooper, 1940, 163 Or. 512, 98 P.2d 711 (objections to estate accounting); Irwin v. Ashurst, 1938, 158 Or. 61, 74 P.2d 1127 (judge and counsel); Pitts v. King, 19......
  • Grubb v. Johnson
    • United States
    • Oregon Supreme Court
    • November 23, 1955
    ...Irwin v. Ashurst, 158 Or. 61, 74 P.2d 1127; pleadings or publications filed by an attorney in the course of litigation, McKinney v. Cooper, 163 Or. 512, 98 P.2d 711; private litigants or private prosecutors or defendants in a criminal prosecution, Strycker v. Levell and Peterson, 183 Or. 59......
  • McKenna v. Crawford
    • United States
    • U.S. District Court — District of Oregon
    • August 3, 2018
    ...accorded communications made by attorneys in judicial proceedings." Troutman v. Erlandson, 286 Or. 3, 6 (1979) (citing McKinney v. Cooper, 163 Or. 512 (1940)). The court has "[l]ikewise . . . recognized the absolute privilege of communications made by parties in judicial proceedings." Id. (......
  • Franson v. Radich
    • United States
    • Oregon Court of Appeals
    • April 15, 1987
    ...communications made by attorneys in judicial proceedings." The privilege applies to anything that may be pertinent. McKinney v. Cooper, 163 Or. 512, 519, 98 P.2d 711 (1940). Although the absolute attorney privilege question most frequently arises in defamation actions, this court has held t......
  • Request a trial to view additional results

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