Stewart v. Wilson

• Decision Date: 28 March 1877
• Citation: 23 Minn. 449
• Parties: LEVI M. STEWART <I>vs.</I> EUGENE M. WILSON and another.
• Court: Minnesota Supreme Court

23 Minn. 449

LEVI M. STEWARTvs.

EUGENE M. WILSON and another.

Supreme Court of Minnesota.

March 28, 1877.

Appeal by plaintiff from a judgment of the court of common pleas of Hennepin county, entered pursuant to an order of Young, J., made at the trial, dismissing the case for failure of the complaint to state a cause of action.

D. A. Secombe, for appellant.

Wilson & Lawrence, for respondents.

CORNELL, J.

This action was dismissed in the court below on the ground that the complaint did not state facts sufficient to constitute a cause of action, to which ruling the plaintiff excepted, and the case is now before us, upon appeal from the judgment, to review this alleged error.

The article, the publication of which is claimed as a libel, contains what purports to be a copy of a duly verified answer, put in by defendant Wilson, to a complaint in an action in the court of common pleas of Hennepin county, wherein Levi M. Stewart is plaintiff, and the said Eugene M. Wilson, Edgar Nash, and several others therein named, are defendants, and certain comments thereon by the author of the article. The complaint herein sets out the article in full, without any innuendoes. It designates the article as a certain libel; avers that the defendants caused it to be published, in a certain newspaper called the Minneapolis Daily Tribune, of and concerning the plaintiff; that the publication was false, and that the complaint in the therein-entitled action (referring to that given in said answer) was duly verified by the plaintiff. The answer, which forms part of the alleged libellous article, contains the following: "And defendant denies that he in any manner counselled, aided, or abetted, maliciously or otherwise, in procuring the committing of the acts by plaintiff complained of, and says all the allegations of the same, as by plaintiff made, are false and untrue, as plaintiff well knew when he made them."

The point is made by plaintiff, in this court, that this portion of the answer — considered in connection with the fact, averred in the complaint herein, that the complaint in the action in which said answer was interposed was verified by plaintiff — contains a direct charge of perjury, as well as malicious prosecution, by plaintiff, and that "this charge, though made in a judicial proceeding, is not privileged, for the reason that it was immaterial, irrelevant, and impertinent."

It is conceded that this answer was interposed to a complaint in a regular judicial proceeding, and that the actionable character of the statements depends entirely upon their materiality and relevancy in reference to the material averments of such complaint — the cause of action therein stated. The complaint in this action does not disclose, by way of inducement or otherwise, what that cause of action or complaint was, nor the character of its averments. Hence it does not appear whether the denials and affirmations contained in the answer were pertinent and material or not. Their actionable character can only be shown by proof of extrinsic facts, which the pleader should have properly alleged in his complaint. This point, therefore, is not well taken. 1 Starkie on Slander, 391; Kinney v. Nash, 3 N. Y. 177, 182; Moak's Van Santvoord, 210.

2. Plaintiff also objects to the decision of the court, as error, that "the publication also, by indirection, charges the plaintiff with perjury eo nomine." This is based upon the following portion of the publication: "As Mr. Wilson has sworn to this answer, here is a good chance for the `deacon' to bring a complaint against him for perjury. We have not the slightest doubt but there is a great deal of perjury in these numerous cases, and it ought to be shown up. We have no idea, however, that Mr. Wilson is tainted with it in the slightest."

In determining the application and meaning of this...