Opinion · Supreme Court of North Carolina
Frazier v. . Felton
8 N.C. 231
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1820-12-05
- Topic
- general
He then proceeded at length to state divers reasons why the *Page 118 judgment should be reversed, which are all taken notice of in the opinion of the Court, and need not be stated more particularly. Gaston contended that the appellant had, by his failure to file the record, forfeited all right to open it again, and could not be heard against the judgment. He admitted that if the appellee opened the record to the Court the whole case was subject to the opinion of the Court, which must then give such judgment as the court below ought to have given. But he urged that the provision allowing the appellee to file the record was for his benefit and he was at liberty to waive at any time before he actually asked for an affirmance of the judgment. He was entitled to be the first mover, and if he did not choose to ask anything from the Court the appellant could not.
Citator
UpLaw has not yet analyzed Frazier v. . Felton. The absence of a flag is not a finding that it is good law.
- Cited by
- 3 opinions
FRAZIERv. FELTON,8 N.C. 231(1820)
FRAZIER v. FELTON and Wife.
Supreme Court of North Carolina
December Term, 1820.
2. If the appellee file the record in this Court he can afterwards obtain a certificate of the failure of the appellant to bring it up, but the Court must look into the record and affirm or reverse the judgment.
3. It is not ground for this Court to order a new trial, that the court below has not stated the case on the record, for the appeal is not necessarily from the opinion of the court on points arising out of the facts at the trial, but may be for error in the pleadings. It is not error for husband and wife to appear by "their" attorney, for although they are but one person in law, the husband may make an attorney who shall appear for him and her.Page 116
4. In an action against husband and wife for a libel, the declaration had two counts. In the first it was charged that "the defendants combined and contrived to cause it to be believed that the plaintiff was a sot and common drunkard." In the second, it is charged that the defendants "further contriving and intending as aforesaid, " composed, etc., the libel, etc., with inuendos applying the words to the plaintiff. Upon plea of not guilty a verdict was found for the plaintiff upon the second count only.Held, that the words "further contriving and intending as aforesaid," refer to the allegation contained in the introductory part of the first count and constitute a sufficient averment in the second count, "that the defendants contrived and intended to cause it to be believed that the plaintiff was a sot and common drunkard," without repeating those words in the second count.
The motion was supported bySeawelland opposed by (232)Gastonfor the appellee. After argument the Court refused thecertiorari.
The opinion was given by the Chief Justice: The defendants have appealed from a judgment rendered against them in Hertford Superior Court, but have neglected to bring up the appeal within the three first days of this term of this Court, as required by the act of 1818. Acertiorarito bring up the cause and place it on the docket is now moved for on behalf of the defendants upon an affidavit stating that the defendant, Boon Felton, gave bond to prosecute the appeal; that the case to be sent up was to have been made out by the judge and counsel who tried and prosecuted the cause, and that he believed everything had been done in the case necessary to a fair trial in this Court. The affidavit further states that the defendant is just informed that no case has been sent up from the Superior Court, for which he is unable to assign any reason. This affidavit is made before the clerk in Hertford, and is dated 7 January, eleven days after the expiration of the time within which the transcript ought to have been filed by the appellants, whose duty it is made by the act of Assembly. It does not appear that Felton made any effort to inform himself before the day the affidavit was sworn to whether the case had been made out, nor is there any allegation that hePage 117applied to the clerk of the court below within due time for the appeal, or that he was prevented by accident from doing so. No step appears to have been taken by him to place the cause here before the affidavit was made. Though the judge might make out the case it was not to have been expected that he would bring up the transcript; and as the appellant did not know until 7 January that the case was not made out, that circumstance could have no influence in preventing him from applying for and bringing up the transcript. For these reasons it appears to me that the affidavit furnishes no ground on which acertiorarican be awarded. (233)
The appellants also present a transcript of the record to the Court, and urge as another reason for acertiorarithat it appears therefrom that they did appeal and gave bond, and that a case was to have been made out by the judge, and that his omission to do so ought not to prejudice the party. It is certain that in practice an appeal is most frequent from decisions which do not otherwise appear upon the record than as they are connected with it by the case made out. It is competent, nevertheless for a party to appeal from the judgment on the record as well as from points made at the trial.By the whole Court. — Therefore the motion is denied.
It turned out, however, that the appellee had, after the third day of the term, actually filed the record with the clerk and directed him to docket it, but at the same time observed that he reserved to himself the right of obtaining from him a certificate of the failure of the appellants to file it. He now applied for the certificate, but the clerk declined giving it as the record was now filed by himself, unless the Court should direct it.
In this manner the case was brought before the Court again, when
He likewise submitted arguments in support of the judgment below, if the Court should think proper to go into that matter.
From the record it now appeared to be an action for a libel, commenced in the Superior Court, and the declaration was as follows, viz:
"Superior Court of Law,
"September Term, 1819."Hertford County — ss.
"James Frazier complains of Boon Felton and his wife, Eliza Felton, in custody, etc., of a plea of trespass on the case, etc., for that whereas the said James now is a just, moral, temperate and well-behaved man and citizen of the State, and as such hath always conducted himself, and until the committing of the several grievances by the said Boon and his wife Eliza, as hereinafter mentioned, was always reputed and esteemed by all his neighbors and other good and worthy citizens to whom he was in any wise known, to be a person of good name, fame (235) and credit; and whereas also the said James hath not ever been guilty, nor until the committing of the several grievances by the said defendants, as hereinafter mentioned, been suspected to have been guilty of the offenses and intemperate misconduct hereinafter mentioned to have been charged upon and imputed to the said James, or of any other such misconduct and infamous manner of living, by means of which said premises he, the said James, before the committing of the said several grievances by the said defendants, had deservedly obtained the good opinion and credit of all his neighbors and other good and worthy citizens to whom he was known. Yet the said defendants, well knowing the premises and greatly envying the happy state and condition of the said James, and contriving and wickedly and maliciously intending and combining together to injurePage 119the said James in his good name, fame and credit, and to bring him into public scandal, infamy, disgrace and contempt with and amongst all his neighbors, and other good and worthy citizens to whom he was known, and to cause it to be believed that he the said James was a common sot and habitual drunkard, and with intent to vex, harrass and bring him, the said James, into contempt and disgrace, as aforesaid, the said Eliza Felton, wife of the said Boon, on the 20th day of July, A.D. 1819, at Hertford aforesaid, falsely, wickedly and maliciously did compose and publish and cause and procure to be published of and concerning the said James a certain false, scandalous, malicious and defamatory libel, containing amongst other things the false, scandalous, malicious, defamatory and libelous matter following, of and concerning the said James, that is to say: `His father' (speaking of John H. Frazier, and meaning the said James)`has given so much way to the pleasures of Bacchus that the old man is atall times utterly unqualified for business'(meaning and intending to have it believed that he, the said James, was a common sot and habitual drunkard and thereby incapacitated for business)."
"And the said James further saith that the said Boon and his wife Eliza, further contriving and intending as aforesaid, afterwards, to-wit, on the same day and year last aforesaid, falsely, wickedly and maliciously, wrongfully and unjustly, did compose and publish and cause and procure to be published a certain other false, scandalous, malicious and defamatory libel of and concerning the said James, containing, amongst other things, certain other false, scandalous, defamatory and libelous matters of and concerning the said James, as follows, that is to say,`Hisfather(speaking of John H. Frazier and meaning the said James)has given so much way to the pleasures of Bacchus thatthe old man(meaning the said James)is at all times utterlyunqualified for business'(meaning and intending thereby to have it believed and understood that the said James was a common sot and habitual drunkard); by means of the committing of which said several grievances by the said Boon and (236) his wife Eliza, as aforesaid, he the said James hath been and is greatly injured in his said good name and reputation, and brought into public scandal, infamy and disgrace with and among his neighbors and other good and worthy citizens to whom the falsity of the said charge was unknown, and who thence have believed him to be an habitual drunkard and sot, unfit for business and unqualified for the usual intercourse of social life; wherefore, the said James saith that he is injured and hathPage 120sustained damage to the value of three thousand dollars, and therefore he brings suit, etc."
The first is that the husband and wifebothcome bytheirattorney, whereas, being but one person in law, they could not do so. In support of the objection is cited the case ofMaddox v.Wynne, 3 Salk., 62; but the error assigned there was that the husband and wife came by their attorneys —per attornatos(237)suos— in the plural. The principle to be extracted from the case is that as they are but one person in law the wife cannot appoint an attorney. Therefore if an action be brought against husband and wife, if the husband appear by attorney, he shall enter an appearance for both. 5 Com. Dig., Pleader, b. 4. Nor is it error for them to appear by attorney, though the wife be under age, because the husband may by law make an attorney and appearbothfor himself and wife. 1 Show. Rep., 15. The doctrine is further illustrated by the form of defense given in the precedents: "And the said C. D. and E. F., his wife, by G. H.,theirattorney, come and defend the wrong and injury," etc. 2 Chitty's Plead., 409. In the case before us the husband was obliged to join in the plea with his wife, Cro. Jac., 239, 288; and the attorney employed by him necessarily became the attorney of both, and must have pleaded for both. For these reasons I think the objection untenable.
It is further objected that as the words themselves contained in the writing do not impute any offense, but are libelous only by being understood to imply something, it is necessary that thePage 121design in using the words should be first averred by way of introduction, and then their meaning stated byinuendo;and although an inuendo is stated here, yet the office of an inuendo is not to charge but merely to act as avidelecitto what has been stated.
Without pausing to consider whether the words charged in this declaration are so written, by way of allusion and reference, as to require explanatory allegations, whether it was necessary for the jury to find that they meant to convey the imputation of the plaintiff's being a lot and a drunkard, in order to enable the Court to understand them in that sense; but admitting, for the purpose of this argument, that such technicalities were necessary, I will proceed at once to inquire whether the necessary averments are put upon the record. (238)
The first count in the declaration charges that the defendants combined to cause it to be believed that the plaintiff was a common sot and habitual drunkard. The second count, upon which alone the judgment was rendered, charges them with "further contriving and intending as aforesaid." This further combination and contrivance relates to the same object, viz, to cause it to be believed that the plaintiff is a common sot and habitual drunkard. The introductory averments in the first count are thus connected with the second count, which then proceeds to state the libel, and concludes with an inuendo that its meaning and intention was to have it believed that the plaintiff was a sot and drunkard. The inuendo, therefore, does not enlarge or change the sense of the previous words, but is only explanatory of the matter previously expressed, by applying the libel to it. Nor is it of any consequence whether the extrinsic matter is introduced on the record by averment, recital or general inference, for if the introductory matters and inuendos appear upon the record they amount to sufficient averments. Cowp., 684. Upon the whole case, therefore, I think the judgment must be affirmed.
The appellant's counsel has urged as a reason why the judgment should be reversed and a new trial granted that the judge omitted to make up a case. He contends that an appeal presupposes a case; and a none appears the remedy must be by new trial, for otherwise irreparable mischief would be done; and none will arise from it, because if the merits be with the (240) plaintiff the result will be the same upon a second trial. This reasoning would be unanswerable were the premises correct, but they are not. An appeal does not necessarily presuppose a case to be stated by the judge, from whose opinion on the case the appeal was taken. For the appeal can as well be from a judgment on what is called emphatically the record, that is to say, the writ, declaration, pleas, replication, etc., to the issues, verdict and judgment, as from any opinion of the judge given on points arising in the progress of the cause. This matter is verified in the very case now before us, for the appellant now urges that this judgment ought to be reversed for alleged defects in the declaration and other errors appearing on the face of the proceedings. For these and the reasons given by the ChiefPage 123Justice I am of opinion that there ought not to be a new trial and that the judgment must be affirmed.