Nations v. New York Times

• Decision Date: 07 March 1933
• Docket Number: No. 22145.,22145.
• Citation: 57 S.W.2d 713
• Parties: NATIONS v. NEW YORK TIMES.
• Court: Missouri Court of Appeals

57 S.W.2d 713

NATIONS v. NEW YORK TIMES.

No. 22145.

St. Louis Court of Appeals. Missouri.

March 7, 1933.

Appeal from Circuit Court, St. Francois County; I. N. Threlkeld, Special Judge.

"Not to be published in State Report."

Action by Gus O. Nations against the New York Times. From a judgment for defendant on its plea of abatement, plaintiff appeals.

Affirmed.

Harry O. Smith, of Farmington, and Chas. M. Hay and Gus O. Nations, both of St. Louis, for appellant.

Jerry B. Burks, of Farmington, and Allen C. Orrick and Nagel, Kirby & Shepley, all of St. Louis, for respondent.

KANE, Judge.

This was an action of attachment brought by appellant on the 15th day of April, 1931, against the respondent, the New York Times, a nonresident corporation, in the circuit court of St. Francois county, to recover damages, because of the alleged wrongful publication on August 14, 1929, of false and defamatory statements concerning the appellant. On the same day appellant filed in said court his affidavit for writ of attachment, alleging as grounds therefor "that the defendant is a nonresident of this state and is a corporation of a state other than Missouri and cannot be served in this state in the manner prescribed in chapter 12, article 4 of the Revised Statutes of Missouri, and that the said defendant's chief office or place of business is out of this state." Affidavit for attachment was signed and duly verified by the appellant.

The court issued the writ of attachment as prayed and thereafter writs of garnishment in aid of said attachment were issued summoning Mrs. Fred M. Karsch and H. E. McLean, as garnishees, who were subscribers to the "Daily Times," a newspaper then published by the respondent in the city of New York, state of New York.

Respondent filed, as denominated in abstract of the record, a "plea in abatement to the writ of attachment," which is as follows (omitting caption):

"Now comes defendant, New York Times Company, and expressly limiting its appearance herein for the purpose of filing this plea, and for no other purpose, states and shows to the court that on the 15th day of April, 1931, plaintiff filed suit in this court, returnable to this term, and caused to be issued a writ of attachment thereon against defendant. Defendant states that on the said 15th day of April, 1931, prior thereto and now, plaintiff was and is a resident and citizen of the City of St. Louis, Missouri, and defendant was at all said times, and now is, a resident and citizen of the State of New York, and at no time owned, possessed or controlled any tangible assets in St. Francois County, Missouri, and neither did it have an office or place of business in said county. all of which was well known to plaintiff on the 15th day of April, 1931, aforesaid.

Defendant further states that plaintiff, by cunning, connivance, fraud and deceit, and for the fraudulent purpose of obtaining jurisdiction over defendant and its property, assets, debts or other obligations due defendant that might be found in said county, as a basis for filing said suit herein, did, in the furtherance of the said fraudulent scheme cunningly, and in bad faith, connive, agree with and cause one Emma Karsch, wife of Fred M. Karsch, and sister-in-law of plaintiff, then and now a resident of the City of Farmington, County aforesaid, to subscribe for "The Daily Times," a newspaper then published by defendant in the City of New York, State of New York, and which said subscription was made on the 8th day of April, 1931, for a period of three months, as evidenced by her letter of that date, as follows, to-wit:

                                 "`316 West College St
                                 "`Farmington, Mo
                                 "`April 8, 1931
                "`New York Times
                  "`New York
                

"`Dear Sirs:

"`Please send me the Daily Times for three months. I do not know the subscription price, but will remit on receipt of bill.

                      "`Yours truly, Mrs. Fred M. Karsch.'
                

"Defendant further states that, in pursuance of the fraudulent design, purpose and intent of plaintiff to acquire jurisdiction in this county and in this Court, and jurisdiction over the property, assets, debts or obligation owing or due defendant in this county, he, the said plaintiff, did, with the same fraudulent purpose and intent, and in bad faith, connive, agree with and cause and induce one H. E. McLean, a resident of the City of St. Louis, Missouri, to subscribe for the newspaper aforesaid of defendant for a period of one month on the 15th day of April, 1931, as evidenced by his letter of that date, as follows, to-wit:

                                     "`St. Louis, Missouri,
                                     "`April 15, 1931.
                "`The New York Times,
                  "`New York City.
                "`Gentlemen:
                

"`Please send me The Daily Times for one month at the address given below. I do not know the subscription price, but will remit on receipt of bill.

                                  "`H. E. McLean,
                                     "`2217a S. Jefferson.'
                

"Defendant states that plaintiff caused and procured the respective parties aforesaid to subscribe for said newspapers on credit, for the express purpose, and none other, of establishing a situs of their respective debts at and in the County of St. Francois aforesaid; that, in pursuance of said fraudulent scheme and device, plaintiff did, on the 15th day of April, 1931, aforesaid, and in connivance with said H. E. McLean, bring, or cause to be brought, said McLean from said City of St. Louis into this County for the purpose of being served with notice of garnishment issued on the writ of attachment in this cause, and he was so served, and notice of garnishment was issued on said attachment writ on the 15th day of April, 1931; that the amount of said McLean subscription is $1.25 and that of said Emma Karsch is $3.75.

"Defendant states and avers the fact to be that said subscriptions so made were not the voluntary acts of said Emma Karsch (Mrs. Fred M. Karsch) and said H. E. McLean, and in good faith, but were brought about solely at the instance and request of plaintiff in furtherance of the fraudulent scheme and design to place the situs of said debts in this county and to enable said plaintiff to obtain a fictitious jurisdiction in this court and over said debts as well; that the acts and conduct of plaintiff in the particulars aforesaid, and in causing said subscriptions to be made are tantamount to and of the same effect as if plaintiff had secretly, or without right, caused the property of defendant to be brought into this county from another jurisdiction, and said debts of said subscribers are, in truth and in fact, the debts, acts and obligations of plaintiff.

"And so defendant states and charges the fact to be that to permit plaintiff to prosecute his attachment suit against defendant and its property, if any, in this court, would be and is an imposition and fraud on defendant, and his acts and conduct in the particulars aforesaid in thus seeking to attach defendant's property in this court should be, and is a fraud on this Court, and this Court is wholly without jurisdiction of said cause or the property of or debts owing defendant, so sought to be attached.

"Wherefore, the premises considered, defendant prays that said writ of attachment and the levies thereunder be abated, annulled, quashed and for naught held, and for all further relief.

                   "[Signed]   Jerry B. Burks,
                              "Parkhurst H. Sleeth,
                                  "Attorneys for Defendant.
                "Nagel, Kirby & Shepley,
                  "Of Counsel for Defendant."
                

Thereafter, appellant filed a demurrer to respondent's plea in abatement, which is (omitting caption) as follows:

"Comes now the plaintiff herein and demurs to the special plea of defendant to abate, annul and quash the writ of attachment herein and levies thereunder upon the ground that said plea does not allege facts sufficient to constitute any reason in law for abating the writ of attachment or levies made thereunder, or for any other relief prayed for in said plea.

                        "[Signed]   Gus O. Nations,
                                           "Plaintiff."
                

On May 25, 1931, being one of the days of the regular May term, 1931, of said circuit court, respondent's plea in abatement and appellant's demurrer thereto were, by agreement of parties, taken up by the court.

Appellant objected to the introduction of any evidence by the respondent on its plea in abatement, stating that the statute (section 1314, Revised Statutes of Missouri 1929 [Mo. St. Ann. § 1314]) provides that an attachment may be abated only upon a plea which traverses the allegations of the affidavit for attachment and which is required by said statute to be verified by affidavit; complaint being made that the pleading denominated a "plea in abatement" did not traverse the allegations of the affidavit for attachment, but admitted the grounds for the attachment and was not verified by affidavit.

The court overruled the objection made by the appellant, and respondent then called Emma S. Karsch as a witness on its behalf, who testified that her sister was married to the appellant, and that on the 8th day of April, 1931, she subscribed for the newspaper called the "Daily Times," for three months, which newspaper is published by the respondent, requesting a bill for her subscription which she afterwards received for $3.75; that appellant was on a visit with the witness in the latter part of March or the first of April, 1931, and that she acquainted appellant's wife (her sister) with the fact that she had intended subscribing for the paper; that she had no information at the time she told her sister of her intention to subscribe that appellant was preparing to sue the New York Times; that she knew nothing of it whatsoever. That on the 15th day of April, 1931, she was served with a writ of garnishment; that she knew Harry McLean of St. Louis; that he came there to fit glasses; that she knew nothing of appellant's plans; that she did not think it necessary to inquire as to the subscription price...