Samuelson v. Tribune Publishing Co., 1626

• Decision Date: 29 April 1930
• Docket Number: 1626
• Citation: 287 P. 83,41 Wyo. 487
• Parties: SAMUELSON v. TRIBUNE PUBLISHING CO., ET AL. [*]
• Court: Wyoming Supreme Court

287 P. 83

41 Wyo. 487

SAMUELSON v. TRIBUNE PUBLISHING CO., ET AL. ^[*]

No. 1626

Supreme Court of Wyoming

April 29, 1930

APPEAL from the District Court, Laramie County; CYRUS O. BROWN Judge.

Action by A. F. Samuelson against the Tribune Publishing Company and another. Judgment for defendants and plaintiff appeals.

Appeal Dismissed.

For the appellant there was a brief and an oral argument by H. S Ridgely, of Cheyenne, Wyoming.

Truth of the alleged libel was not a defense at common law. Com. v. Blanding, 3 Pickering 304, 15 Am. Dec. 214. The common law of libel is the rule of decision in this state, except as modified by Const. Art. I, Sec. 20, which was considered in Kutcher v. Post Printing Co., 23 Wyo. 178. The newspaper article here involved was clearly libelous; it was set out in plaintiff's petition which alleged its falsity. It referred to plaintiff. McLaughlin v. Russell, 17 O. 475. The innuendos were sufficiently pleaded. Bourreseau v. Evening Journal Co., 63 Mich 425; Sipp v. Coleman, 179 F. 997; Carley v Feeney, (N. J.) 40 A. 678; Nash v. Fisher, 24 Wyo. 535.

For the respondents there was a brief and an oral argument made by William E. Mullen and Joseph C. O'Mahoney, both of Cheyenne, Wyoming.

The jurisdiction of this court to review the cause would seem to be in doubt because of appellant's failure to comply with the statute in having the record on appeal transmitted to this court upon the expiration of twenty days after the date of filing his specifications of error with the clerk below. 6410 C. S. We assume that the point will be considered by this court without a formal motion to dismiss. In McClintock v. Ayres, 34 Wyo. 476, the appeal record was filed prematurely, which was held not to affect the jurisdiction. The case of Scott v. Co., 37 Wyo. 527, involved a failure to file the appeal record in the District Court within 70 days after judgment appealed from, and this was held to be fatal to the jurisdiction. State v. Genero, 39 Wyo. 325, 271 P. 17, involved a delay of nine and one-half months in filing specifications of error below, and a delay of fourteen months after verdict in docketing the appeal, and for this the appeal was dismissed. In the case of Krivokapich v. Owl Creek Coal Co., (Wyo.) 281 P. 295, the appeal was dismissed for failure to docket the case within thirty days after judgment as required by the Workmen's Compensation Law. The undoubted purpose of the "direct appeal" statute, as well as the Compensation Law in fixing limitation of time for taking appeals, is to require diligence in the prosecution thereof.

If the appeal is considered by this court on its merits, it will be noted that no special damages are alleged in the petition. The only question for inquiry would seem to be whether the article is libelous "per se". If the article is libelous "per se" absence of averments as to special damages leaves the pleading fatally defective. Wiley v. Oklahoma Press, 233 P. 224; Callfas v. Co., 139 N.W. 830; Brown v. Pub. Co., 138 P. 258; Rowan v. Gazette, 239 P. 1035, 37 C. J. 35, 36. The use of innuendos cannot make matter libelous which is not libelous in fact. Newell on Slander and Libel, p. 589; Wallace v. Co., 90 N.W. 835, 17 R. C. L. 396, 37 C. J. 23, 25; Pyper v. Jennings, 191 P. 565; Pollock v. Evening Herald Pub. Co., 154 P. 30. The matter complained of is not libelous "per se". The demurrer only admits matter well pleaded. Matthews v. Oklahoma Pub. Co., 219 P. 937. The article does not charge appellant with subordination of perjury. Shafroth v. Tribune, 201 P. 271; Rowan v. Co., 239 P. 1035; McClure v. Co., 80 P. 303; Mellen v. Times Mirror, 140 P. 277. The case of Kutcher v. Printing Co., 23 Wyo. 178, relied upon by appellant is not in point upon the facts. The article was qualifiedly privileged. Const. Art. I, Sec. 20; Diemer v. Star-Chronicle, 132 S.W. 1143. The article complained of consisted of public criticisms of appellant's liberation on a trial, charging him with a public offense, such comment being privileged unless express malice is alleged. 36 C. J. 1277, 37 C. J. 33.

H. S. Ridgely, in reply.

Our only purpose in filing a reply brief is to set forth the facts with reference to language in respondent's brief, criticising the delay in conducting the appeal: affidavits are annexed hereto showing that the clerk refused to file the appeal record. The clerk's refusal to transmit the record to this court, should not be prejudicial to this appellant. Budd v. Roy, 26 Wyo. 211. The contention of respondent's challenging the jurisdiction of this court to review the case at bar is without merit.

OPINION

Per Curiam.

The appeal is taken by the plaintiff from a judgment entered against him after he had elected to stand on a petition to which a demurrer had been sustained.

The judgment was entered June 3, 1929. The record for the appeal, including specifications of error, was filed with the clerk of the District Court August 7, 1929, but not filed in this court until January 13, 1930. Because of the delay in filing the record in this court, the respondent asks that the appeal be dismissed. The cause of the delay is shown by statements in an additional brief and affidavits filed by appellant. When the record for the appeal had been filed with the clerk of the District Court, the attorney for appellant requested the clerk to transmit the record to the clerk of the Supreme Court. The clerk of the District Court refused to comply with the request, saying, among other things, that if the attorney "wanted the record in the Supreme Court to take it there." The record remained in the office of the clerk of the District Court until the last of September or first of October, 1929, when the attorney for appellant, learning that the clerk was ill, took the record from the clerk's office. The attorney kept the record until January 13, 1930, when he filed it and his brief with the clerk of this court.

The statutes fix the time for the doing of every required act to commence and perfect an appeal to this court. One of the purposes of these limitations is to compel the diligent prosecution of appeals. State v. Genero, 39 Wyo 325, 329, 271 P. 17. The delay complained of in this case was in transmitting the record to the clerk of the Supreme Court. The law provides "that if the judge of the District Court shall neglect or refuse to grant the appellant a new trial within the period of twenty days from the date on which the specifications of error are filed with the clerk of the District Court, said clerk shall thereupon transmit to the clerk of the Supreme Court the record on appeal and the specifications of error." Sec. 6410, Wyo. C. S. 1920. The word "thereupon", as used in the statute, means "forthwith". Miller v. New York Oil Co., 32 Wyo. 483, 489, 235 P. 323, 325. We have held that an appeal will not be dismissed because the clerk of the District Court sends the record to this court before expiration of the twenty-day period. McClintock v. Ayers, 34 Wyo. 476, 245 P. 298. The reasons for that decision would not apply to a case of failure to transmit the record forthwith after the expiration of such period. In Budd v. Roy, 26 Wyo. 210, 181 P. 140, 141, we held that the record was filed in this court within the time required by law, and remarked that it was filed "even earlier than required." We then added: "And it is at least doubtful if a delay of the clerk in transmitting the record to this court would be ground for dismissal. We are not prepared to hold that it would." That statement was not necessary to the decision, but we may concede that it expresses a justifiable doubt. The appellant ought not to suffer for the delay of the clerk. It would seem, however, that in some c...