Wilson v. Sullivan

• Decision Date: 23 May 1888
• Citation: 7 S.E. 274,81 Ga. 238
• Parties: WILSON v. SULLIVAN.
• Court: Georgia Supreme Court

7 S.E. 274

81 Ga. 238

WILSON v. SULLIVAN.

Supreme Court of Georgia

May 23, 1888

Syllabus by the Court.

All charges, allegations, and averments contained in regular pleadings addressed to and filed in a court of competent jurisdiction, which are pertinent and material to the redress or relief sought, whether legally sufficient to obtain it or not, are absolutely privileged. However false and malicious they are not libelous. This privilege rests on public policy which allows all suitors (however bold and wicked, however virtuous and timid) to secure access to the tribunals of justice with whatever complaint, true or false, real or fictitious, they choose to present, provided only that it be such as the court whose jurisdiction is invoked has power to entertain and adjudicate. The alleged libelous matter in the present case, being contained in a bill praying for an injunction, was relevant and material; consequently absolutely privileged. ^[1]

The court of equity had jurisdiction to entertain an application for injunction, but the court of law that rendered the judgment sought to be enjoined had none. Neither did the latter court have power to set aside the judgment for perjury in its procurement, (the ground for injunction urged in the bill,) no conviction of perjury having taken place. Code, §§ 3591, 4467.

A plea to the action for libel, justifying the words as true, to the best of defendant's knowledge and belief, was no waiver of the privilege. The plea did not render words libelous which were not so when the action was brought.

Error from superior court, Pike county; BOYNTON, Judge.

T. R. Mills, F. D. Dismuke, and J. F. Redding, for plaintiff in error.

John I. Hall, E. W. Hammond, J. D. Stewart, and A. M. Speer, for defendant in error.

BLECKLEY C.J.

The alleged libelous matter on account of which this action was brought was contained in a sworn bill filed by Wilson against Sullivan, to obtain an injunction against the sale of Wilson's property, the same being levied upon under an execution in favor of Sullivan against Wilson and another. In order that the case may be fully understood, the whole bill is set out in this opinion, and is as follows:

"STATE OF GEORGIA, PIKE COUNTY. -- In the Superior Court of said County.-- To the Honorable John D. Stewart, Judge of the Superior Court of said County: Humbly complaining, showeth unto your honor your orator, C. R. Wilson, that at the October term of the superior court of said county, there came on to be heard certain matter wherein J. W. Sullivan of said county was plaintiff, and Thomas Herbert, a colored man, was defendant, and your orator as security for said Herbert. And your orator further showeth that at the hearing of said cause, by means of the corrupt and false statements and testimony then and there given to the jury in said case by said plaintiff in said action, a verdict was rendered in favor of said plaintiff against said Tom Herbert as principal, and your orator, as security, for a large sum of money, to-wit, ninety dollars, or other large approximate sum. And your orator further showeth that by virtue of the judgment in said cause, W. P. Bussey, as sheriff of said county, under an execution issued from said court, has levied upon certain property of your orator, described in the return made on said execution, and will sell the same unless prevented by your honor's injunction, on the first Tuesday in March, 1884. And your orator showeth unto your honor that the said judgment is a nullity, being founded entirely upon a fraud practiced on said court and jury, having been procured by the false and corrupt testimony of said J. W. Sullivan. And your orator further showeth that at the same term of said court the grand jury of said county did, for and on account of said testimony given by said Sullivan in said court, find a true bill of indictment for the crime of perjury against said Sullivan; and your orator is advised that no action was had or taken on such bill of indictment so found and reported, for some cause unknown to your orator, but which your orator prays may be inquired into by your honor and a jury of said county. And your orator further showeth that, since the said term of said court, and since the said levy of the execution upon the property of your orator, he has been voluntarily and freely approached without solicitation on your orator's part, by two respectable citizens of said county, to-wit, Squire Wright and Washington Dewberry, of whose testimony he was not aware previous to said trial the said levy, and has been informed by said parties that prior to said trial the said J. W. Sullivan did approach them, the said Wright and the said Dewberry, and, knowing them to be poor and needy, did attempt to bribe them, the said Wright and Dewberry, and did make to each of them a proposition to perjure themselves for a consideration, as follows, to-wit, that if they, the said Wright and Dewberry, would attend the said court at the said October term thereof, and confirm the testimony of the said Sullivan, he, the said Sullivan, would give to each of said parties one dollar and fifty cents each for every day's attendance, and would pay the hotel board of said parties, and furnish to each of said parties all the whisky he could drink. And your orator further showeth that he cannot avail himself of legal remedy against such execution being enforced upon his property, as he is advised that an affidavit of illegality will not lie, even for fraud and perjury, against a judgment solemnly rendered; and that his only redress is in a court of equity, where such matter are properly heard and determined. And your orator expressly waives all manner of discovery from the defendant touching the various matters here charged against said J. W. Sullivan. And your orator prays that the state's writ of injunction may issue directed to the said J. W. Sullivan, and the said W. P. Bussey, as sheriff of said county, restraining the said Sullivan and the said sheriff from further proceeding with the enforcement of said execution, and commanding and enjoining the said sheriff against selling the property of said orator at the March sales, 1884, of said county, and until the further order of said court. And your orator prays that your honor will grant such other and further relief in the premises as to your honor may seem proper. And your orator prays that said J. W. Sullivan, and the said W. P. Bussey, as sheriff as aforesaid, be and appear at the April term, 1884, of said court, to stand to and abide such order and decree as may be made in the premises. And your orator will ever pray," etc. "F. D. DISMUKE, T. R. MILLS, Complainant's Sol'rs."

The bill was sworn to by Wilson on the 21st of February, 1884. The alleged libel consists in the imputation to Sullivan of the crimes of perjury, and attempting to bribe or suborn witnesses to commit perjury. The allegations of the bill upon both these topics--though upon the former they are much less specific than they should be--are all pertinent to the object for which the bill was filed. They come up to any sound test which has ever been laid down in England or America, so far as we know, touching the privilege of pleading. They constitute matter of absolute, unconditional privilege according to all authorities; because they are both relevant and material to the object contemplated by the bill. In connection with the necessary details as to the matter of Sullivan's testimony, the fact that he testified falsely, and the fact that he attempted to suborn witnesses to corroborate his false testimony, would, in reply to him, have been admissible evidence in the original case,--the one in which he testified; and, had they been proved to the satisfaction of the jury which determined that case, the verdict might have been the reverse of what it was, and the judgment which the bill sought to enjoin might never have been rendered. And, as to the injunction applied for by the bill, if these facts were not material and relevant, the bill contained nothing that was, for the whole stress of the bill was upon them. They contributed the entire basis upon which it rested. The case made was one in which the complainant sought relief by injunction against a judgment procured by the false and corrupt testimony of the plaintiff in that judgment, because of such perjury, and because of newly-discovered evidence (to-wit, an attempt to suborn witnesses) tending to prove the perjury. Unless it can be said that a whole bill is irrelevant to itself, these facts are relevant; unless it can be said that a whole bill is immaterial to its own structure, these facts are material. They are not only material, but the most material which the bill contains. True, they are not legally sufficient, especially as the bill does not set out in what the false testimony consisted, nor show that the judgment or verdict could not have been...