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NALLE V. OYSTER, 230 U. S. 165 (1913)
U.S. Supreme Court
Nalle v. Oyster, 230 U.S. 165 (1913)
Nalle v. Oyster
Submitted April 16, 1913
Decided June 16, 1913
230 U.S. 165
The practice of bills of exceptions is statutory under the Statute of Westminster, 2, 13 Edw. I, c. 31, which prevailed in Maryland and was continued in force in the District of Columbia by the Act of March 3, 1901, except as superseded by the Code, established by that act.
Error appearing on the face of the record may be assigned as ground for reversal, although no exception be taken; nor is the function of an exception confined to the trial of the action, but extends to all the pleas, challenges and evidence.
This practice was not modified by the Code, nor has it been by any rules of practice established under it; there is no provision giving the right to take exceptions on rulings other than those made in the course of the trial, except as based on the Statute of Westminster; nor does any rule of court require an exception to be taken in order to preserve rights of a plaintiff against whose declaration a demurrer has been sustained.
Section 1533 of the Code applies only where the demurrer has been overruled; it has no bearing upon a case where the demurrer has been sustained.
Ordinarily malice is to be implied from the mere publication of a libel, and justification or extenuation must proceed from the defendant; but where the communication is privileged, the burden is on the plaintiff to prove malice. White v. Nichols, 3 How. 266.
Allegations of malice, falsehood, and want of probable cause in issuing a libel are of fact, and are necessarily admitted by a demurrer.
The issue joined upon a demurrer to one count of a declaration is legally distinct and separate from the issue joined upon a demurrer to another count; nothing can be imported from one count to the other, nor can a judgment be based upon surmise that a matter referred to in one count is the same as that referred to in another.
If the parties in the former action be the same as in the present, every matter and question of fact necessarily involved in the consideration and determination of the former issue is conclusive upon the present. Southern Pacific Railroad v. United States, 168 U. S. 1, 168 U. S. 48. A judgment denying the petition in an action for mandamus to compel reinstatement of a public school teacher in which the defendants, members of the Board of Education, pleaded that the petitioner was not sufficiently qualified as a teacher and the court held this was justification of the dismissal is res judicata as to that question in a suit for libel subsequently brought by the petitioner against the same defendants for the statement made in such pleading.
A statement as to the qualifications of a teacher in the public schools made by members of the Board of Education in their answer to a petition for mandamus to reinstate her after dismissal is privileged, and if made without malice and with probable cause, is not actionable.
Such a statement cannot be held in an action for libel to have been made without probable cause if the court has held in another proceeding that the defendants were justified in making it.
No civil action lies for a conspiracy unless there be all overt act that results in damage to the plaintiff.
Publication of a privileged statement in an action as an essential part of a pleading by several defendants members of an official body held in this case not to be an overt act of a conspiracy.
36 App.D.C. 36 reversed.
The facts, which involve the practice of bills of exceptions in the District of Columbia and the extent to which statements made by members of a Board of Education in regard to qualifications of a school teacher are privileged, are stated in the opinion.
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