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Wyatt v. Buell

N. G. WYATT v. RUFUS T. BUELL

Wyatt v. Buell, 47 Cal. 624 (1874)
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Court
California Supreme Court · State Highest Courts
Decided
July 1, 1874
Docket
No. 3,828
Citations
47 Cal. 624
Cited by 12
Syllabus
Libel in Legal Pboceedings.—If % party, in an application to the Supreme Court for an extension of time to file a transcript, goes outside of the facts, material to procure-the order, and states matter wholly foreign to the application, in which he charges his attorney with having entered into a collusive agreement with the attorney of the other party, this charge against his attorney is not a privileged communication, but is libelous per se.
Summary
Appeal from the District Court, Twentieth judicial District, County of Monterey. Action to recover damages for a libel contained in an application addressed by the defendant to the Supreme Court. This application, or, rather, petition, was sworn to, and stated that the petitioner was the defendant in an action which had been tried in Monterey County, wherein a judgment had been rendered in favor of L. M. Cohn and against him, at the April Term, 1870, and that he gave notice of motion for a new trial, and filed a statement, but that, on the third day of July, he met with an accident while riding horseback, and had, kince the sixteenth of July, been .under the care of a physician, and had been in a critical condition, until within two weeks, but had not been able to prepare and arrange the transcript. The petitioner then went on to state the history of the case, and of a difficulty between himself and his attorney, the present plaintiff, about an answer his attorney had drawn up, and intimated that the answer made admissions which it ought not to have contained; and that he, Buell, would have obtained a nonsuit against Cohn if his attorney had not made admissions in the answer which he ought not to have made; and then stated: “ Now your petitioner believes, and ever will, that there was collusion between his attorney and plaintiff’s attorney.” The petitioner further stated that he then discharged his attorney. The plaintiff obtained a judgment in this case in the Court below, and' the defendant appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court

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By the Court:

The demurrer to the complaint was properly overruled. The publication complained of was libelous per se, and was not privileged. The libelous matter was contained in a sworn application addressed to the Justices of this Court by the defendant, requesting an extension of time to file the transcript on appeal in a cause wherein the defendant was appellant. The reason which he assigned as a ground for the extension was that he had recently met with a severe accident which disabled him from preparing the transcript on appeal. But instead of confining himself to this, which was the only material matter in his application, he proceeded to give a history of the proceedings in the cause, and charged his attorney (the present plaintiff) with having entered into a collusive agreement with the attorney for the adverse party. All this was wholly foreign to the application for an extension of time, and under no recognized rule can be .treated as privileged. The motion for a new trial was properly denied. There was no specification in the statement of the particulars wherein the evidence was insufficient to justify the verdict, nor of the errors of law which were relied upon.

Judgment and order affirmed. Remittitur forthwith.

How later courts describe this case

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Cited by 12 cases

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1882–1883: 11886–1887: 11906–1907: 11910–1911: 11918–1919: 11932–1933: 11934–1935: 11938–1939: 11940–1941: 11966–1967: 11968–1969: 11998–1999: 118822026peak 1882 · 1

Relies on it most ⓘ

  1. Smith v. Hatch271 Cal. App. 2d 39 (1969)
  2. Thornton v. Rhoden245 Cal. App. 2d 80 (1966)
  3. Gosewisch v. Doran119 P. 656 (Cal. 1911)
  4. Sacramento Brewing Co. v. Desmond, Miller & Desmond89 Cal. Rptr. 2d 760 (1999)
  5. Hollis v. Meux11 P. 248 (Cal. 1886)
  6. Donnell v. Linforth52 P.2d 937 (Cal. Ct. App. 1935)

Most recent

  1. Sacramento Brewing Co. v. Desmond, Miller & Desmond89 Cal. Rptr. 2d 760 (1999)
  2. Smith v. Hatch271 Cal. App. 2d 39 (1969)
  3. Thornton v. Rhoden245 Cal. App. 2d 80 (1966)
  4. Kelly v. Lou Daro118 P.2d 37 (Cal. Ct. App. 1941)
  5. People v. Faber77 P.2d 921 (Cal. Ct. App. 1938)
  6. Donnell v. Linforth52 P.2d 937 (Cal. Ct. App. 1935)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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