Perry v. Perry

• Decision Date: 19 October 1910
• Court: North Carolina Supreme Court
• Parties: PERRY v. PERRY.

69 S.E. 130

(153 N.C. 266)

PERRY

v.PERRY.

Supreme Court of North Carolina.

Oct. 19, 1910.

Libel and Slander (§ 51^*)—Libelous Publication—Judicial Proceedings—Affidavit in Support of New Trial—Privilege. In a prior action between plaintiff and defendant, defendant moved for a new trial on an affidavit in which he characterized plaintiff's evidence as "false, " "false in the start and fraudulent in the manner in which it was attempted to be established, " and that plaintiff's claim was "essentially unjust, dishonest and unlawful." Held that, there having been no publication of the language except in the affidavit, the occasion was privileged, and the language was not actionable, though the charges were known to be false, and actual malice was proven.

[Ed. Note.—For other cases, see Libel and Slander, Cent. Dig. § 149; Dec. Dig. § 51.*]

Appeal from Superior Court, Wake County; O. H. Allen, Judge.

Action by Frank R. Perry against W. R. Perry. Judgment for defendant, and plaintiff appeals. Affirmed.

B. O. Beckwith, for appellant.

Holding, Bunn & Snow, Aycock & Winston, and Peele & Maynard, for appellee.

CLARK, C. J. The defendant, W. R. Perry, was executor of S. D. Perry, deceased. The present plaintiff, Frank Perry, brought an action against the executor to recover a certain amount which he claimed to be due him. At the first trial in the superior court, the jury found against the plaintiff. A new trial was granted because of the comment of the judge upon the plaintiff's counsel. At the second trial the jury found in favor of the plaintiff, and this judgment was affirmed by the Supreme Court. 151 N. C. 741, 67 S. E. 1133. The plaintiff, Frank Perry, then sought to charge the executor personally with the costs of said litigation, and at the October term, 1908, lodged a motion to this effect, supporting it by an affidavit in which he charged the executor with bad faith in defending the action. In response to this affidavit and in order to show his good faith in defending said action,, the executor filed an affidavit upon which this action for libel is brought. The motion was denied, and the executor was not taxed personally with the costs.

The substance of the paragraphs in aforesaid affidavit upon which the plaintiff relies as ground for this action for libel is that said affidavit styles the testimony of plaintiff in the action referred to as "false, " "false in the start and fraudulent in the manner inwhich it was attempted to be established, " and that plaintiff's claim was "essentially unjust, dishonest, and unlawful." This is warm language, but the occasion was privileged. There was no publication of this language by the defendant in the newspapers, or...