author: GRAVES, J.

text:
    OLLIE M. REED et al., Petitioners, v. HENRY L. BRIGHT et al.
    In Banc,
    February 9, 1911.
    1. WRIT CORAM NOBIS: Circuit Courts: Prohibition. Circuit courts can entertain- writs of error cormn nobis, or motions in the nature of the common law writ of error coram nobis. But writs of prohibition from the Supreme Court to the circuit judge will lie to prohibit him from exceeding his jurisdiction in ruling upon a writ coram nobis.

    2. -: Motion: Knowledge: Motion for New Trial. A motion in the nature of the common law writ of error- coram nobis, filed in the original case, cannot be used to reach error in the record of which movent had knowledge or the- means of knowing by reasonable diligence. Por instance, where the record recites the filing and overruling of a motion for a new trial and contains an order allowing an appeal, a motion in , the nature of the writ coram nobis charging .that no motion for a new trial and no affidavit for appeal were filed during the term, will not reach the matter, because the parties could easily -have ascertained whether or not such motion and affidavit had been filed..
    3. -: Attacking Record. A writ of error coram. nobis cannot be used to falsify the record. It cannot be used to attack ' the verity of the record showing a motion for a new trial was filed and overruled and' an order allowing an appeal made, by charging no such motion had in fact ever been filed or any affidavit' for appeal. That error of fact cannot be reviewed upon writ of error coram nobis.

    4. -: Matters of Procedure: After Appeal. As a general rule the writ of error coram nobis is one which strikes at the judgment on the merits. Where all the errors of fact complained of relate to matters of procedure and orders made thereon after the judgment was rendered and an appeal taken, the court does not have jurisdiction to issue a writ of error coram nobis and uproot its own judgment pending the appeal.
    5. APPEAL: Subsequent Jurisdiction. After the adjournment of the term at which a judgment was rendered and an appeal • was allowed, the trial court is divested of jurisdiction to set aside the order granting an appeal on the ground that the record recital that a motion for a new trial was filed and overruled and that an affidavit for an appeal was filed, was false. After the appeal the jurisdiction as to the judgment of the cause is vested in the appellate court.
    Prohibition.
    PEREMPTORY WRIT AWARDED

      J. B. McGilvray and B. A. Mooneyham fox petitioners.
    (1) A demurrer to the petition and rule in prohibition admits every allegation of the petition well pleaded. State ex rel. v. Shepherd, 192 Mo. 497. (2) Prohibition lies whenever the lower court is without jurisdiction or is acting in excess of jurisdiction or abuse of its powers, and no other remedy is available. State ex rel. v. Wood, 155 Mo. 425 ; Railroad v. Wear, 135 Mo. 230; State ex rel. v. Elkins, 130 Mo. 90; State v. Hirsel, 137 Mo. 447; State v. Court of Appeals, 99 Mo. 216; State v. Withrow, 133 Mo. 522; State v. Sale, 188 Mo. 493. (3) Where an appeal is perfected the cause is pending in the appellate court, and no further order can be made in the cause by the trial court unless it be an order vacating the appeal made during the term. 2 Ency. Pleading, p. 327; O'berkotter v. Luebering, 4 Mo. App. 481; State ex rel. v. Anthony, 65 Mo. 553; Bull v. Meeks, 20 Mo. 359; Ladd v. Couzins, 35 Mo. 513; De Kalb County v. Hixon, 44 Mo. 341; Stewart v. Stringer, 41 Mo. 400'. An appeal to the Supreme Court from a judgment of the circuit court invests the Supreme Court with, and deprives the circuit court of, all jurisdiction over the cause, and this is so although no appeal bond was given and there was no supersedeas of the judgment, and pending the appeal the circuit court can make no order vacating the judgment and setting aside a sale thereunder. Burges v. O’Donoghue, 90 Mo. 299; Keller v. Cash-man, 118 Mo. App. 384; Cassidy’s Appeal, 112 Mo. App. 717. Where an appeal has once been granted the power over the subject is functus officio and cannot be exercised a second time. State v. Anthony, 65 Mo. App. 553; Brill v. Meek, 20 Mo. 359. An appeal from a judgment of the circuit court invests the appellate court with, and deprives the circuit- court of, jurisdiction over the cause. Stewart v. Stringer, 41 Mo. 400; Brill v. Meek, 20 Mo. 359; Jones v. Insurance Co., 55 Mo. 342; Burgess v. Donoghue, 90 Mo. 299; Ladd v. Couzins, 35 Mo. 513; DeKalb County v. Hixon, 44 Mo. 341. But pending the appeal no order vacating the judgment (or setting aside a sale thereunder) can be made, and no further proceedings in the case can be had in the trial court. State v. Musick, 7 Mo. App. 597; Woolaston v. Mendenhall, 1 Del. Ch. 23; Levi v. Kárrick, 15 Ia. 444; Helen v. Boon, 29 Ky. (6 J. J. M.) 351; Williams v. Chew, 6 Mart. (N. S.) 464; Longhottom v. Babcock, 9 La. 44; Mason v. Jones, 2 Bradf. (Snr.) 325; Suggs v. Suggs, 1 Tenn. (1 Overt.) 2. The casó is none the less pending in the appellate court, though the transcript is not actually filed in such court.. Poster v. Rucker, 26 Mo. 494. It seems that a court has the power during the term, at the request of appellant, to set aside an order granting an appeal, and thus vacate the appeal which has been granted in appellant’s favor. The court cannot, however, vacate an order allowing an appeal after due expiration of the term at which such order is made. 1 Cyc. 814; Oberkoeeter v. Luebering; 4 Mo. App. 481; State ex rel. v. Grates, 143 Mo. 63; Burgess v. O ’Donogkue; 90 Mo. 299; Bank v. Allen, 68 Mo. 474. A judgment nunc pro tunc can only be made upon evidence furnished by the papers and files in the cause, or something of record or in the minute book, or the judge’s docket to amend by. Collier v. Lead Co., 208 Mo. 272; Railroad v. Holscklag, 144 Mo. 256; Young v. Young, 165 Mo. 630; Atkinson v. Railroad, 81 Mo. 50; Belkin v. Rhodes, 76 Mo. 643; State v. Primm, 61 Mr. 166; Robertson v. N'eal, 60 Mo. 579; Burnside v. Wand, 170 Mo. 543; State v. Libby, 203 Mo. 597; Stidd v. Railroad, 211 Mo. 416 ; Reed v. Colp> 213 Mo. 587; G-amble v. Daugherty, 71 Mo. 599. (4) A properly authenticated transcript of the proceedings in the trial court imports absolute verity and cannbt be contradicted by affidavits nor in any other manner. State v. Blunt, 110 Mo. 336; Wells v. Lea, 20 Mo. App. 352; Bradley-Hubbard Mfg. Co. v. Bean, 20 Mo. App. Ill; 2 Ency. PI. and Prac., p. 296; Hyath v. Wolfe, 22 Mo. App. 200. (5) To entitle respondents to a writ of error coram nobis there must have been, unknown to the court, some pre-existing fact which, if known, would have prevented the court from rendering judgment, for if the facts were known to the court, and the court acted erroneously or illegally, then it was an error of law on the part of the court and should be taken to a higher tribunal by appeal or writ of error; instead of making application to the trial court itself.' Marble v. Yan Horn, 53 Mo. App. 364; 1 Black on Judgments, sec. 300; 2 Freeman on Judgments, sec. 94; Milan v. Robertson, 47 Tes. 222; Hawkins v. Bowie, 9 Gr. & J. 428-. The function of a writ of error coram nobis is to vacate a judgment in the court in which it was rendered, by apprising that court of some fact, previously unknown, which, if known, would have prevented'the, rendition of the judgment. Hadley v. Bernero, 103 Mo. App. 549; Smith v. Young, 124 Mo. App. 74. In this motion filed by the defendants in the circuit court nor in the affidavits in support thereof is there any allegation that the facts upon which the motion is based were unknown to the court. On the contrary it affirmatively appears from the motion that the court knew that counsel for the plaintiffs was not present in court and it also affirmatively appears that the court knew that the motion for a new trial and the affidavit for appeal had not been filed, hence the. facts being fully known to the court cannot be reached by a simple motion filed after the adjournment of the court, nor by a motion in the nature of a writ of error coram nobis. State v. Stanffiy, 225 Mo. 525; State v. Wallace, 209 Mo. 365. The law is that the writ of error coram nobis does not lie if the complaining party knew the fact complained of at the trial or at the time the error was made or before, or by reasonable diligence could have known it, or was otherwise guilty of neglect. 4 Ency. PL- and Pr., 29; Jackson v. Milson, 6 Lea 515; Marble v. Yan Horn, 43 Mo. App. 361; Brandon v. Diggs, 1 Heisk. 472; Hadley v. Bernero, 103 Mo. App. 563; McKinley v. Buck, 43 Mo. App. 488; 1 Freeman on Judgments, 94; Asbellv. State, 62 Kan. 214.

      J. D. Harris for respondents.
    (1) The circuit court has jurisdiction to entertain the motion in the nature of. a writ of error coram nobis. It is a motion exclusively within the jurisdiction of the same court which rendered the judgment or made the order, and brings its own judgments before it for review and reversal or modification, on account of some error of fact, not of law, affecting the validity and regularity of the proceedings and which was not brought into the issue. State ex rel. v. Riley, 219 Mo. 667; 23 Cyc. 883; Latshaw v. McNees, 50 Mo. 381; Powell v. G-ott, 13 Mo. 458; Craig v. Smith, 65 Mo. 536; Cross v. Could, 131 Mo. App. 597; State ex rel. v. White, 75 Mo. App. 257; Dugan v. Scott, 37 Mo. App. 663; State ex rel. v. Iiorine, 63 Mo. App. 1; State v. Heinrich, 14 Mo. App. 146. The writ of error coram nobis, and the motion which has superseded it in modern practice, has always been recognized by the courts of this State as the proper remedy where a judgment has been rendered against a party in consequence of an error of fact which does not appear on the record. State ex rel. v. Riley, 219’ Mo. 667; 11 Ency. P'l. and Prac. 847; 23 Cyc. 883; Cross v. Could, 131 Mo. App. 685;. Heard v. Sack, 81 Mo. 610; Calloway v. Nifung, 1 Mo. 223; Dugan v. Scott, 37 Mo. App. 663; Latshaw v. McNees, 50 Mo. 381; Walker v. D'eaver, 79 Mo. 664. There is no limitation for filing the motion in the nature of a writ of error coram nobis, and if the party filing the motion is otherwise entitled to the relief which he seeks he cannot be deprived of it on the ground that the motion was not seasonably filed. State v. Heinrich, 14 Mo. App. 149; State ex rel. v. Riley, 219 Mo. 683; Latshaw v. McNees, 50' Mo. 381; 23 Cyc. 885; Cross v. Could, 131 Mo. App. 585; State ex rel. v. White, 75 Mo. App. 257; Powell v. Cott, 13 Mo. 458; Cross v. Could, 131 Mo. App. 585; State ex rel. v. White, 75 Mo. App. 257; Craig v. Smith, 65 Mo. 53; Latshaw v. McNees, 50 Mo. 381; State ex rel. v. Horine, 63 Mo. App. 1., The writ of error coram nobis must be founded upon and supported by evidence aliunde the record, and its office is to correct the record on account of some error of fact, not of law, which does not appear of record. State ex rel. v. Riley, 219 Mo. 667; Cross v. Gould, 131 Mo. App. 585; Latshaw v. McNees, 50 Mo. 381. (2) The court had lost its jurisdiction of the case, but not of its records. It had authority, as well after as before the appeal, to amend its records according to the truth, so that they should accurately express the history of the proceedings which actually occurred prior to the appeal. DeKalb County v. Hixon, 44 Mo. 34.1; Welch v. Damon, 1.1 Gray 383; Chichester v. Cande, 3 Cow. 42; Mechanics’ Bank v. Minthorne, 19 Johns. 244; Richardson v. Mellish, 11 Eng. C. L. 173; State v. Biesemeyer, 136 Mo. App, 671; Bank v. Alien, 68 Mo. 474; Ross v. Railroad, 141 Mo. 397; Sublette v. Railroad, 66 Mo. App. 334; Burdett v. Dale, 95 Mo. App. 514; In re Grading Bledsoe Hill, 222 Mo. 609. (3) The writ of prohibition goes only to restrain the assumed exercise of jurisdiction where none exists, and not to its erroneous or irregular exercise. State ex rel. v. Burckhartt, 87 Mo. 537; State ex rel. v. Court of Appeals, 99 Mo. 221; State ex rel. v. Klein, 116 Mo. 268. If the lower court has jurisdiction to determine the question before it. prohibition will not lie. State ex rel. v. Court of Appeals, 99' Mo. 221; State ex rel. v. Burckhartt, 87 Mo. 533. That the circuit court has jurisdiction of the motion in the nature of a writ of error coram nobis, is a proposition sustained by such authority as to render it invincible to attack at this day. State ex rel. v. Rüley, 219 Mo. 667; Latshaw v. McNees, 50 Mo. 381; Cross v. Gould, 131 Mo. App. 597; Craig v. Smith, 65 Mo. 536; State ex rel. v. White, 75 Mo. App. 257; Dugan v. Scott, 37 Mo. App. 668; Powell v. Gott, 13 Mo. 458 ; State ex rel, v. Horine, 63 Mo. App. 1; State v. Heinrich, 14 Mo. App. 146; Ex parte Toney, 11 Mo. 661. Prohibition can never be employed as a process for the correction of errors of inferior tribunals. State ex rel. v. Burckhartt, 87 Mo. 537; State ex rel. v. Klein, 116 Mo. 268; Shaw v. Pollard, 84 Mo. App. 288. Prohibition cannot be made to perform or usurp the functions of an' appeal. Mastín v. Sloan, 98 Mo. 252; State ex rel. v. Stobie, 194 Mo. 52; State ex rel. v. Anthony, 65' Mo. App. 554; State ex rel. v. Burckhartt, 87 Mo. 538; State ex rel. v. Klein, 116 Mo. 268; State ex rel. v. Hough, 193 Mo. 648.
   GRAVES, J.

This is an original action in this court, the purpose of which is to prohibit the respond^ ent, Henry L. Bright, as one of the judges of the Jasper County Circuit Court, from cancelling certain orders in the case of Ollie M. Reed et al. v. Samuel Moss et al., defendants. To abbreviate, the pleadings show that in the case aforesaid judgment was entered for the defendants. The record of the court also shows that on the day such judgment was entered, the following entries of record were made in the court presided over by the said Bright, the respondent herein:

“Trial by court and decree for defendants as prayed and as per record entry.
“Motion for new trial filed.
“Motion for new trial overruled.
“Affidavit for appeal filed.
“Docket fee of $10 deposited,
“Appeal granted to Supreme, Court.
“Appeal bond in the sum of $500 to be filed with and approved by clerk within ten days after adjournment of present term of court; leave to plaintiff to file bill of exceptions on or before the 3d day of February, 1910, term.”

These records are from the clerk’s minutes, hut it is pleaded, and therefore admitted, because respondent stands here upon a demurrer, that they were fully spread of record in the usual and customary form on the same day and before the court adjourned. The court adjourned for the term on the day this judgment was entered, and the records perfecting the appeal were made.

By proper order of court the time for filing the bill of exceptions was extended, so that the rights of the appellants were duly preserved, but for the threatened action of the respondent, which action it is averred was beyond his power at the time under the facts pleaded.

Later the defendants, in the suit aforesaid, after the appeal was granted to this .court and all the entries made as above set out, filed a motion in the nature of an application for an order for writ of error coram nobis. This application sets out all of the records written up from the minutes of the clerk herein above set out and then thus concludes:

“The defendants state that in truth and in fact no motion for new trial was filed by plaintiffs in said case on the 18th day of December, 1909', and that no such motion was filed during the said November, 1909, term of said circuit court; that no affidavit for appeal was filed on said 18th day of December, 1909, that no affidavit for appeal was filed during said November,-1909, term of said circuit court, and that no affidavit for appeal was filed at any time in said case, and that no bond for appeal was ever filed therein. Defendants further state that on the 20th day of December, 1909, two days after the final adjournment of said November term of said court, R. A. Mooneyham, one of the attorneys for the plaintiff, filed with the clerk of said circuit court, an instrument purporting to be a motion. for a new trial in said cause, and that James Burke, deputy circuit clerk of said court, as such deputy clerk dated back the time of the filing of said purported motion for new trial, so that the filing date indorsed on said purported motion for new trial showed that it had been filed on the 18th day of December, 1909, while in truth and in fact said purported motion for new trial was filed on the 20th day of December, 1909, and in vacation of said court. And that the record of the filing of a motion for new trial by plaintiffs on the said 18th day of December, 1909, the record of the court’s action in overruling said motion on said day, the record of the filing of an affidavit for appeal and the record of the court’s action thereon in allowing an appeal to the Supreme Court on said date; the order allowing plaintiffs leave to file a bill of exceptions in said cause on or before the 3d day of the next term of court thereafter and the court’s order fixing the amount of the appeal bond, and allowing same to be filed with and approved by the clerk of said court within ten days after the final adjournment of court, were all ordered made and done in consequence of the errors of fact as hereinbefore set forth, but which do not appear on the record. So that in said proceedings there is manifest error prejudicial to the rights and interests of the defendants.
“Wherefore, the premises considered, the defendants pray that this honorable court vacate the said orders and entries of records showing the filing of said motion for new trial, the overruling of the same; the filing of an affidavit for an appeal from said judgment, and the allowance of such appeal to the Supreme Court; the order for the appeal bond, with leave to file with the clerk as aforesaid; and the order granting to plaintiffs leave to file bill of exceptions in said case, and that all said records be vacated and for naught held; and for all and such other relief as to the court may seem meet and proper.”

Relator’s petition sets out all the facts and records in the case of Reed et al. v. Moss et al., and concludes by charging that the said Bright was threatening to assume jurisdiction and hear and determine said motion, and was threatening to sustain the same on September 3, 1910, and would sustain the same on that day unless prohibited by this court. It is further averred that his threatened action was beyond the jurisdiction of said respondent in said cause.

Preliminary rule was granted in vacation by the late Chief Justice James D. Pox, and the respondent has filed return in the nature of a demurrer, and stands thereon. The facts are therefore admitted and we have purely questions of law. This is a sufficient statement of the case as to facts.

I. It stands admitted by the return in the nature of a demurrer that the respondent is assuming to act on the motion filed by the defendants in the original suit, and not only so, but that he would have sustained the same on the date named, but for the intervention of our preliminary rule to show cause. If therefore under the facts stated the respondent was without lawful authority or jurisdiction to act, the final writ should go.

That circuit courts in this State can entertain writs of error coram nobis, or motions in the nature of the common law writ of error coram nobis, is unquestioned. [State ex rel. v. Riley, 219 Mo. 667, and the cases therein reviewed; State v. Stanley, 225 Mo. 525, and the cases therein reviewed.] The rule in this State is the general rule. The status of the writ is firmly fixed in the modern practice, but of common law origin. In 5 Ency. of Pl. and Prac., p. 30, it is said: “Notwithstanding occasional statements that the writ of coram nobis has ‘fallen into desuetude,’ and. that ‘redress obtained through its aid is now sought by motion,’ it was a part of the common law received from the mother country, and, when not specially abrogated by statute, still remains a factor in modern practice. ’’

But the question we have here is, whether or not, notwithstanding this general jurisdiction in circuit-courts, the respondent in the present court was exceeding such jurisdiction in the present case. We are convinced that respondent was exceeding his jurisdiction in this case, and for the several reasons that we discuss next.

II. The writ of error coram nobis is a part of the common law to which we have fallen heir. No statute in this State undertakes to define this power of a court of general jurisdiction, nor do our laws prescribe the procedure. We must therefore look to the common law for the scope of the writ as well as for the procedure.

In this State, as will be seen from the cases cited, supra, the courts have treated certain motions as being in the nature of the common law writ of error coram nobis. But the case law of this State and elsewhere precluded the respondent from so treating the motion in this case. The motion upon its face does not go to that class of error in fact, which is reached -by the writ of error comm nobis. The motion states the facts relied upon. It avers they were unknown to defendants in the original case, but upon its face the motion further shows that the alleged unknown facts could have been known by the exercise of diligence upon the part of the parties. The parties in the original case were in court for all purposes from the beginning to the end. The files of the court were open to inspection. Such parties are presumed to have been in court when these several orders were made. A casual examination of the files would have shown that there was no motion for new trial or affidavit of appeal filed. The objection to the several orders could have then been made.

In discussing a very similar question Ellison, J., in Marble v. Vanhorn, 53 Mo. App. l. c. 364, said: “There is another important rule found in this branch of the law, viz., that where the party, complaining knew the fact, or might have hnovon it, and failed to bring it to the attention of the court he cannot after-wards do so.”

This language was quoted with approval by this court in the very recent case of State v. Stanley, 225 Mo. l. c. 532. After thus approving this language from one of our own courts, we in that case collated the authorities from other jurisdictions and quoted therefrom. We then said: “And this is the rule in other jurisdictions. In Asbell v. State, 62 Kan. l. c, 214, the court said: ‘It cannot reach any matter of fact. known to the court, for such would be error of law, and might be remedied by writ of error. Nor can the writ reach matters of fact known, or which by the exercise of reasonable diligence could have been known, to or by the party making the application at the time of the court’s error. Nor can the writ give' a new trial on the grounds of evidence going to the merits, but undiscovered in time for use on the original trial, or newly-discovered evidence.’ In Sanders v. State, 85 Ind. l. c. 326, Judge Elliott, speaking for the court, said: ‘The writ of error coram nobis is not intended to authorize any court to review and revise its opinions; but only to enable it to recall some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court.”

The general rule is thus summarized in 5 Ency. of Pl. and Pr., p. 29: “The writ will not lie where the party complaining knew the fact complained of, at the time of or before trial, or by the exercise of reasonable diligence might have known it; or is otherwise guilty of personal negligence in the matter; or when proper advantage could have been taken of the alleged error at the trial.”

So in the case at bar, every alleged unknown fact stated in the motion is one which should have been known and called to the attention of the court when these orders were made. The exercise of any diligence whatever would have disclosed the absence of these papers from the files.

III. There is yet a stronger reason why the motion filed in the case under consideration cannot be entertained as a writ of error coram nobis. Said motion attacks' the record and the verity thereof. This can never be done in writs of error coram nobis. In other words, the error of fact charged in the petition or motion for a writ of error coram nobis must be consistent-with the record in the case. It must not attack the verity of the record.

In 5. Ency. of Pl. and Pr., p. 34, the general rule is thus stated: “ The petition should not assign as error any fact adjudicated in the former suit, or any fact which contradicts the record.”

The record in this original case shows the filing of the motion for hew trial and the affidavit for appeal. It is presumed the court satisfied itself as to the filing of these papers before making these orders and passed judgment upon the sufficiency thereof in making the orders made. At any rate the error of fact charged is one which contradicts the recital of the record itself, and is not an error of fact which can be reviewed upon writ of error coram nobis.

In the case of Williams v. Edwards, 12 Ired. 118, Ruffin, C. J., for the North Carolina court, has elaborately discussed the question. Among many other things thereon, he said: “An averment of fact against the record cannot be heard in a case of this kind more than in others. [Bac. Abr., Error, K. 3.] Only snch errors in fact can be assigned as are consistent with the record. When an infant, for- example, is sued, there is nothing to enable the conrt to see that he is or is not an infant. The law considers that, as an infant, he has not "discretion to choose an attorney, and therefore will not let him appear by attorney, bnt requires the court to appoint a fit person his guardian to make defense for him. As the court does not know the defendant’s infancy, it is the part of the plaintiff to ascertain and make known the fact, so as. not to allow the court to decide against a person under disability, for whom the full defense may not have been made which the law intends. F'or that fault the plaintiff’s judgment must necessarily be reversed, so as to let in the other party to defend with all the advantages to which the law entitled him; and therefore the defendant may aver the fact of his disability which stands well with the record, in order that he may. have the benefit of a legal defense. It is the same when a feme covert is sued without her husband.”

So, too, says the Alabama court in the case of Holford v. Alexander, 12 Ala. l. c. 286.’ “It is said to be the general rule, ‘that nothing can be assignéd for error that contradicts the record; for the records of the courts of justice being things of the greatest credit, cannot be questioned but by matters of 'equal notoriety with themselves; wherefore, though the matter assigned for error should be proved by witnesses of the best credit, yet the judges would not admit of it.’ Under the influence of this rule, it has been held that on a writ of error to reverse a fine, the plaintiff cannot assign that the conusor died before the teste of the declimus, because that contradicted the record of the conusance taken by the commissioners; but the plaintiff may say that after the conusance taken, and before the certificate thereof returned, the conusor died, because this is consistent with the record. So, where the record of a judgment recites that it was rendered by a court at which a judge mentioned eo nomine presided, it cannot he assigned (though in fact the court was held before his deputy according to the King’s patent) that that judge was nbt there; for such allegation is contrary to the record. Again, it has been decided, for the reason above stated, that it shall not be assigned for error that the defendant filed his warrant to defend by A. B., his attorney, and that it appears on the judgment he appeared and defended by C. D., his attorney.’ [2 Bac. Abr., Error, K. 2; 4 Dane’s Abr., ch. 127, art. 7, sec. 6.]”

The Tennessee court in case of Carney v. McDonald, 10 Heisk. l. c. 234, thus speaks: “There was no error in the dismissal of the petition for writ of error coram nobis. The statement that the cause was tried, .and judgment rendered in the absence of petitioner’s attorney, is insufficient, for two reasons: first, the record recites that the cause was tried in the presence of the attorneys of the parties. It is not competent to contradict the record, as ground for a writ of error coram nobis.”

The same court in Crawford v. Williams, 1 Swan l. c. 346, said: “It is true that nothing can be assigned for error in fact, which appeared and was adjudged in the former suit, or which contradicts the record of that suit. [Bacon, Abr., Error.] And in Birch v. Trist, it is said that the error in fact must be of such a nature, as if true, will destroy the plaintiff’s right of action. [8 East 415.] ”

The motion in this case, which fulfills the office of a writ of error coram nobis in our practice, shows upon its face that its purpose is to contradict the solemn record of the court by parol testimony. It shows that the error in fact is not such as can be reached-by the court in the exercise of its powers under the writ of error coram nobis. To undertake to reach and correct the errors of fact complained of here is in exercise of the power conferred by the ancient common law writ, and therefore beyond the jurisdiction of the court which tried to exercise it. Over this court respondent was judge, and threatened to exceed the limited powers conferred in cases of this kind.

IY. To our minds there are other and further reasons to restrain the threatened action of respondent. All of the errors of fact complained of go to pure matters.of procedure and orders made thereon, occurring after the judgment on the merits. As a general rule the writ of error coram nobis is one which strikes at the judgment upon the merits. It relates to facts which will destroy that judgment.

But further in the case at bar, the original case by an order of appeal duly made by the respondent is now pending in this court. Whilst it is true that the trial court so far retains jurisdiction of a case appealed as to be able to make nunc pro tunc entries, from written data, and certify them to this court as part of the record, we do not think that it has such jurisdiction left as to authorize the issuance of a writ of error coram nobis, and upon a trial had, uproot its own judgment, pending the appeal here. An appeal, except for limited purposes, divests the trial court of jurisdiction. In this case the term had ended. Under such circumstances the general rule is that the circuit court is divested of jurisdiction and the jurisdiction as to the judgment and the cause is vested in the appellate court. [Brill v. Meek, 20 Mo. 358; Ladd v. Couzins, 35 Mo. 513; Burgess v. O’Donoghue, 90 Mo. 299; State ex rel. v. Gates, 143 Mo. 63; Donnell v. Wright, 199 Mo. 304.]

It can be safely said that.the appeal at least robs the trial court of the right to so proceed after the end of its term, as would divest the appellate court of jurisdiction of the cause.

The parties may have some form of remedy for the matter complained of, but the respondent exceeded his jurisdiction in attempting to have a hearing upon this motion. The permanent writ of prohibition should go and it is so ordered. Costs of this action to be taxed against relator.

All concur except Valliant, G. J., absent.


source: Caselaw Access Project

author: LAMM, J. WOODSON, J.

license: Public Domain

text:
    JOSEPH DIENER, Appellant, v. STAR-CHRONICLE PUBLISHING COMPANY.
    In Banc,
    February 9, 1911.
    1. PETITION: Demurrer Preserved for Review. Where a demurrer to the petition has been sustained it does not need a bill of exceptions to preserve it for review on appeal.
    2. -: -: Judgment at Subsequent Term: Appeal. A demurrer to the petition may be sustained at one term, and final judgment reserved to the next; and if at said next or a succeeding term final judgment is entered, plaintiff’s appeal taken in proper time at that term, is timely.
    3. -: Combined Demurrer and Motion. A paper which is both a general demurrer and a motion to strike out the petition, cannot be approved.
    4. -: Motion to Strike Out. A demurrer to the petition may be preserved for review without a bill of exceptions; but a. motion to strike out the amended petition on the ground that it is but a repetition of one which has already been held bad on demurrer, should be preserved for review in a bill of exceptions.
    5. -: Combined Demurrer and Motion. Where defendant filed a motion to strike plaintiff’s second amended petition from the files, in which is combined both a general demurrer and a motion to strike out, and the motion is sustained on the ground that the petition is but a repetition of a'former one which it had been held did not state a cause of action, and that ruling is followed by a final judgment, the paper on appeal will be treated as a demurrer, and the only question considered will be whether or not the 'seeoiid amended petition states a cause of action.

      Held, by WOODSON, J., in separate opinion, that where the amended petition is but a replica of the original petition held bad on demurrer, it should be stricken from the files; but sustaining the motion to strike out does not deprive plaintiff of his right to an appeal.
    6. LIBEL: Kill: Libelous Per Se. The words “killing” and. “killer” are not fairly susceptible of being construed to mean the unlawful or criminal taking of human life, and of themselves are not libelous per se. When read with their context, which relates to the killing of a child on the street by an automobile collision, and are unconnected with vituperation and calumny, they do not mean that the chauffeur wantonly and willfully took the child’s life.

      Beld, by WOODSON, J., dissenting, that when read in connection with other words found in the newspaper article, referring to plaintiff as a man "who had wantonly taken the life of an innocent child in direct violation of law,” and with the further charge that plaintiff was “responsible for a criminal offense for which he might be sent to the penitentiary,” they constitute libel per se.

    7. -:. Wantonly Taking Life: Hypothesis. The. phrase “a man who had wantonly taken the life of an innocent child in direct violation of the law,” standing alone and used as a charge, is libelous; but when the context shows it was used argumentatively and by way of hypothesis, it is not libelous.

      Held, by WOODSON, J., dissenting, that the words were not used hypothetically, but as a direct charge, and could refer only to plaintiff, and are libelous per se.

    8. -: Penitentiary Offense: Argumentative. The use of the expression, “Further, such a finding would make the chauffeur responsible for a criminal offense for which he might be sent to the penitentiary for life and from the consequence's of which he might easily have freed himself while he was at liberty,” used in the criticism of the coroner’s inquest of the chauffeur’s running down the child with his automobile, and not as a statement of fact, and evidently not meant to charge that the chauffeur had actually committed a felony, does not make the publication libelous as against the chauffeur.

      Held, by WOODSON, J., • dissenting, that these words are libelous per se, and refer directly to plaintiff.

      9. -: Public Hatred, etc.: No Defamation. A publication having a tendency to expose one to “public hatred, contempt or ridicule, or to deprive him of the beneüts of public confidence and social intercourse” merely, and no more, is not libelous. The controlling words in the statute in which those are used are “malicious defamation,” and defamation includes the idea of calumny, aspersion by lying, etc.

      Held, by WOODSON, X, dissenting, that when the article referred to plaintiff as a man “who had wantonly taken the life of an innocent child in direct violation of law,” as the “killer,” "who did the killing,” and as “responsible for a criminal offense for which he might be sent to the penitentiary for life,” the “malicious defamation” was present, and the article, by reason thereof, did tend “to expose him to public hatred, contempt or ridicule,” and “to deprive him of the benefits of public confidence and social intercourse.”
    Appeal from St. Louis City Circuit Court. — Hon. Chas. Claflin Allen, Judge.
    Affirmed.

      Robert & Robert for appellant.
    (1) The circuit court had no authority to strike the second amended petition from the files. But one petition had been adjudged insufficient upon demurrer. R. S. 1899, secs. 596, 601, 621-623; Comstock v. Davis, 51 Mo. 569; Spurlock v. Railroad, 98 Mo. 13; Barton v. Martin, 54 Mo. App. 134; Antonelli v. Basile, 93 Mo. App. 141. (2) Where words complained of as libelous are susceptible of two meanings, one harmless and the other defamatory, the jury must determine in which sense the readers may have understood them. Constitution of Mo., art. 2, sec. 14; Julian v. Star Co., 209 Mo. 35; McGinnis v. Knapp, 109 Mo. 131; Caruth v. Richardson, 96 Mo. 190; Johnson v. Dispatch Co., 2 Mo. App. 569; Feder v. Herrick, 43 N. J. L. 24; Publishing Co. v. Jones, 83 Tes. 302; Odgers, Libel and Slander, secs. 23, 306. (3) Both petitions stated a cause of action for libel per se) as the publication charged the plaintiff with the commission of a. crime and held him up to public scorn. E. S. 1899, secs. 1815, 1816, 1817, 1835, 2259, 2375; Meriwether v. Knapp, 224 Mo. 617; Julian v. Star Co., 209; Mo. 35; Minteer v. Bradstreet, 174 Mo. 485; Noeninger v. Vogt, 88 Mo. ”589; Ferguson v. Pub. Co., 72 Mo. App. 462; Hermann v. Bradstreet, 19 Mo. App. 229; Ptib. Co. v. Smith, 149 Fed. 704; O’Shaughnessy v. Recorder Co., 58 Fed. 653; Holt v. State, 89 Ga. 316; Poole v. State, 87 Ga. 526; Clark, Crim. Law (2 Ed.), 186; 1 Whart., Crim. Law; 329. (4) The charge that the plaintiff “had wantonly taken the life of -an innocent child, in direct violation of the law,” is libelous per se. The use of the word “wantonly” imputes a crime to the plaintiff. Trauerman v. Lippincott, 35 Mo. App. 478 ; State v. Schoenwald, 37 Mo. 147; State v. Weeden, Í33 Mo. 70; N. C. v. Vanderpool, 35 Fed. 282; State v. Massey, 97 N. C. 465; Branch v. State, 41 Tex. 622. (5) The words, “in direct violation of the law,” certainly charge a crime. No charge could be more direct. Harper v. Ins. Co., 18 Mo. 109, 19 Mo. 506; Overton v. Ins. Co., 39 Mo. 122; Wolff v. Ins. Co., 5 Mo. App. 236; Brown v. K. P., 83 Mo. App. 633; Murray v. Ins. Co., 96 N. Y. 614; People v. Fox, 38 N. Y. Supp. 635; Cluff v. Ins. Co., 95 Mass. 308; Bloom v. Ins. Co., 97 Ind. 478. (6). (a) The words “killing” and “killer ” imputed to the plaintiff the crime of murder and are actionable per se. Jones v. Murray, 167 Mo. 25; Noeninger v. Vogt, 88 Mo. 589; Button v. Heyward, 8 Mod. 24; Cooper v. Smith, 1 Rolle’s Abr. 77; Loan v. Kelley, 121 Ind. 413; O’Connor v. O’Connor, 24 Ind. 218; Thomas v. Blasdel, 147 Mass. 438; McLaughlin v. Cowley, 131 Mass. 70; McLaughlin v. Cowley, 127 Mass. 316; Publishing Co. v. Jones, 83 Tex. 302; Gurley v. Feeney, 67 N. J. L. 70; Carroll v. White, .33 Barb. 615; Hays v. Hays, 1 Humph. 402; Cady v. Times Co., 58 Minn. 329; Palmer v. Smith, 21 Minn. 419; “Killer,” Webster’s Dictionary, and Century Dictionary, (b) The defendant itself put this construction on the words by suggesting in tbe same article that the plaintiff’s act might’make him responsible for a criminal offense for which he might be sent to the penitentiary for life, and that could be only for murder, or manslaughter in the first degree. (7) It was only necessary to allege in the petition, “generally,” that the words were “published or spoken concerning the plaintiff.” R. S. 1899, sec. 635; Julian v. Star Co., 209 Mo. 35; Callahan v. Ingram, 122 Mo. 366; Caruth v. Rieheson, 96 Mo. 186; Curry v. Collins, 37 Mo. 324; Hudson v. Garner, 22 Mo. 423; Steiber v. Wensel, 19 Mo. 513; Boyce v. Aubuchon, 34 Mo. App. 315; State v. Pulitzer, 12 Mo. App. 9; Dloan v. Kelley, 121 Ind. 413; Curley v. Feeney, 62 N. J. L. 70'.

      Nathan Frank and Richard A. Jones for respondent.
    The article declared on is not libelous. It does not make a defamatory charge against appellant, does not attribute to him any delinquency, legal or moral, and the trial court rightfully held that as to him no statement was contained in the matter complained of which constitutes a cause of action. Spurlock v. Investment Co., 59 Mo. App. 225; Baldwin v. Walser, 41 Mo. App. 243; Legg v. Dunleavy, 80' Mo. 558; Branch v. Knapp, 222 Mo. 580; Blackwell v. Smith, 8 Mo. App. 43; Cristal v. Craig, 80 Mo. 367; Salvatille v. Ghio, 9 M’o. App. 155; Wood v. Hilbish, 23 Mo. App. 389; Klos v. Zahorik, 113 la. 61; Barr v. Pub. Co., 27 R. I. 101; Ourry v. Collins, 37 Mo. 324; Brown v. Tribune, 77 N. Y. Supp. 461; Foot v. Pitt, 82 N. Y. Supp. 464; Ram-scar v. Gerry, 1 N. Y. Supp. 635 ; Kilgore v. Evening Star, 96 Md. 16; Hollenbeck v. Hall, 103 la. 214; Homer v. Engelhardt, 117 Mass. 539; Hanaw v. Jackson Patriot Co., 98 Mich. 506; Edwards v. Chandler, 14 Mich. 471; Bearce v. Bass, 88 Me. 521; Dunneback v. Tribune Ptg. Co., 108 Mich. 75; Brown v. Boynton, 122 Mich. 251.
   LAMM, J.

Tort for libel. This is a companion case to one between the same parties, officially reported in 230 Missouri Report at page 613, involving another libel. Plaintiff’s original petition was held bad on general demurrer. He plead over. At a sub-, sequent term he voluntarily withdrew his first amended petition and filed a second, reading (Nota bene} the part in italics and brackets being in addition to the averments of the original petition, otherwise they were the same):

“Now comes Joseph Diener, plaintiff in the above entitled cause, and files this his second amended petition, and for cause of action states that the defendant, Star-Chronicle Publishing Company, was and is at all times hereinafter mentioned a corporation duly organized and existing under the laws of the State of .Missouri. That at the time hereinafter mentioned said defendant was the publisher, proprietor and printer of a certain daily newspaper of large circulation in and about the city of St. Louis, which said newspaper is published in the city of St. Louis, State of Missouri, and is known as the ‘St. Louis Star-Chronicle.’
“That on, to-wit, the 5th day of May, 1906, there was printed and published in said newspaper the following false, defamatory and libelous article or language of and concerning the plaintiff, to-wit:
“ ‘The Coroner’s investigation into the death of little Gertrude Copeland, who was torn to pieces by Health Comr. Bond’s automobile, held the dead child guilty of contributory negligence, and in this way released the chauffeur from legal responsibility, as far as a Coroner’s inquest can.
“ ‘What chance on earth was there that it should have done anything else?
‘ ‘ ‘ Coroner Baron had already decided that Chauffeur Diener was in no way responsible for the killing by ordering the police to turn him out free on the night of his arrest, without a charge or a bond to hold him.
“ ‘The Coroner took this action on the pledge of the Health Commissioner that he was sure the chauffeur was in no way to blame for the awful death.
“ ‘The police acted on the written order of the Coroner.
“ ‘To hold Chauffeur Diener directly responsible for the killing now would be to hold the police department, the Health Commissioner and the Coroner responsible for the atrocious act of setting at liberty a man who had wantonly taken the life of an innocent child in direct violation of the law.
“ ‘Further, such a finding would make the chauffeur responsible for a criminal offense, for which he might be sent to the penitentiary for life, and from the consequence of which he could easily have fled while he was at liberty.
“ ‘If the Coroner had brought about such a finish to the investigation he would have been a rare man, indeed.
“ ‘Investigation of the high-handed handling of the case reveals that on the night of the tragedy the police'released the chauffeur from all responsibility on the authority of Coroner Baron; that the Coroner acted on the information of Health Commissioner Bond, and the Health Commissioner got all his, information entirely from the chauffeur, who rushed home to tell his boss that he had run over a child, but was not to blame.
“ ‘Thus, on the single and unsupported statement of Chauffeur Diener who did the killing, the killer was released.
“ ‘To save the faces of the officials involved, the child just had to be guilty of contributory negligence.
“ ‘The Chauffeur told the Health Commissioner, the Health Commissioner told the Coroner, and the Coroner told the police, but the pretty little innocent child told nobody, because she died almost instantly.’
“Thereby meaning to charge this plaintiff with having committed a crime involving moral turpitiode, and with having willfully and wantonly taken the life of a human being.
“That at all times referred to in said publication the plaintiff u-as the chauffeur of Health Commissioner Bond, which fact the defendant well knew, and that this plaintiff ivas the chauffeur and the person to whom the defendant referred in said publication.
“Plaintiff further states that said publication was willful and malicious, and that he has been damaged thereby in the sum of twenty-five thousand dollars.
“Wherefore, plaintiff prays judgment in the sum of twenty-five thousand dollars and his costs.”

Defendant attacked the amended petition with the following motion:

“Comes defendant, Star-Chronicle Publishing Company, and moves the court that the second amended petition of the plaintiff in the above entitled cause be stricken from the files and for naught held for the following reasons:
“The matters and things stated and charged in said pleadings are not sufficient to constitute a cause of action against the defendant.
“The subject-matter contained and charged therein is in substance the same as that contained in the original petition, to which pleading the court heretofore sustained a demurrer for the reason that such matter was not sufficient to constitute a cause of action against the defendant; and by his so-called second amended petition the plaintiff seeks simply a review of a decision of this court which has long since- become final.”

On hearing of that motion the court made the following order:

“The court having duly considered the motion to strike the second amended petition from the files heretofore filed and submitted herein, doth order that said motion be and the same is hereby sustained, because this court has previously sustained a demurrer to the original petition stating the same cause of action.”

On a day following that entry, judgment went for the defendant, narrating, inter alia, that a demurrer to the original petition was sustained, that later a motion to strike the second amended petition from the files was sustained, because the court had previously sustained a demurrer to the original petition stating the,same cause of action; and that plaintiff thereupon declines to plead further, wherefore, final judgment is entered that plaintiff take nothing and defendant go hence without day, etc.

In due time plaintiff filed his motion for new trial, saved an exception to overruling the.same, and by a bill of exceptions undertook to preserve his exception to the ruling on the demurrer to the original petition at a prior term, his exceptions to the rulings of the court sustaining defendant’s motion to strike out plaintiff’s second amended petition, and to preserve the original petition for review' here.

Thereafter, perfecting his appeal, the cause came up for review on assignments of error, viz: (1) In sustaining the demurrer to the original petition; (2) In striking the amended petition from the files.

I. It is an accredited legal maxim that, Novelty benefits not so much by its utility, as it disturbs by its novelty. There is another that, We are never to recur to what is extraordinary, until what is ordinary fails. The wisdom of both is finely illustrated by this record. Plaintiff, refusing to stand on his original petition, on demurrer being sustained, files first and second amended petitions, and now asks us to tread hack and review the action of the court at a former term in allowing the demurrer to the original. If a bill of exceptions were necessary to. preserve a demurrer, the ruling thereon and a formal exception thereto, then there is nothing before us on that assignment. This, since a bill of exceptions was filed at a subsequent term, and the general rule is that unless leave he timely granted to file a bill (a condition not presented by this record), the exceptions at each term must be preserved by a hill at that term — they die with the term unless kept alive with a bill. But a bill of exceptions is not a sine qua non to save a demurrer. It needs no “such adventitious aid.”

In that view of it, the next question is whether the matter was not waived by filing an amended, petition? Are not the old petition, the old demurrer and the old ruling, one and all, functus officio? Now, if plaintiff had filed no amended petition, but at a subsequent term had announced he would stand on his original petition and if final judgment had then gone, the question would be simple and its answer at hand. In that event, as there can be but one final judgment in a case and as the code does not require it to be entered at the same' term a demurrer is sustained, and- as no bill of exceptions was necessary, it would seem the original petition, demurrer and the ruling thereon would be here for review according to accepted canons of practice. But the hypothesis just indulged does not aid us in the presence of the facts; for they do not run that way in this record. To add to the confusion, counsel for the defendant did not, in terms and technically, demur to the second amended petition. They filed a motion to strike it from the files, but in doing so their pleading was dual in form. It sought to kill two birds with one stone, or, rather, one with two. It was not only a motion to strike out but also a general demurrer. If that practice is to be tolerated we will presently see,.by one stroke of a pen, an answer, a demurrer, a motion to strike from the files or to dismiss as a bundle, an aggregation leading up to judicial puzzle-headedness. But this is not ail the confusion. In the case at bar plaintiff raised no objections to the dual features of the “motion.” Furthermore, the court (strictly speaking)- apparently ignored the ground of the motion directed to the sufficiency of the amended petition, and sustained it on the grounds the amended petition was a replica of an original already held bad on demurrer. This, agreeable to the' idea that once dead always dead, ergo, once dead was enough. In that rather narrow view of it, the bill of exceptions was necessary to preserve the motion to strike from the files in so far as it filled the office of such motion; for the general rule is motions can be preserved nowhere else.

In this condition of the record, plaintiff’s- counsel argue there is.no such motion known to the practice, as one to strike a petition from the files.

Contra, defendant argues that the motion was well enough, for that plaintiff was not entitled to two rulings, nisi, on the sufficiency of the same petition. We shall not pursue the matter. It seems a tempest in a teapot. We have dwelt on the foregoing novel features, raising singular questions of practice, not to decide tliem at this time, but to edify and admonish. I am not so sure that the brace of lines originally leveled at changes in fashion, maybe:

“Be not the-first by whom tbe new are tried, Nor yet tbe last to lay tbe old aside,”

is not a good court rule.

Our conclusion on tbe matter is tbat, in legal effect, the ruling on tbe motion to strike from tbe files was equivalent to sustaining tbe demurrer to tbe second amended petition. It certainly reached tbat end —witness the final judgment bard on tbe heels of tbat ruling. Apparently such was tbe office given it by tbe parties and tbe court. True, tbe language of tbe order sustaining tbe motion and tbat of tbe judgment itself might bear another construction. It might mean tbat tbe court paid no attention to tbe ground in tbe motion in tbe nature of a demurrer. But it is susceptible of tbe construction we put upon it. It may be held to mean tbat, as the court bad already sustained another demurrer to what it deemed the same petition, it stood by its guns, was satisfied with its legal conclusions and, to make them now effective, applied them to tbe motion and tbe amended petition. Certain it is tbat defendant cannot complain of this view. It voluntarily injected tbe demurrer into tbe body of its motion and must stand sponsor for its presence in tbe record. Nor can plaintiff complain, since tbe view just taken is tbe most favorable possible to him. It is immaterial then, whether we consider tbe original or tbe last demurrer, nor need we bother with comparing tbe petitions to see if they are tbe same; for, if they are, tbe question is here on tbe last demurrer. If they are not, then tbe sufficiency of tbe last petition presents tbe single question in the case. We prefer to let tbe appeal ride off on its own merits, rather than on odd questions of practice.

Observe, plaintiff’s petition did not differentiate between actual damages and smart money as provided by Revised Statutes 1899, section 994. Under such circumstances be was entitled to no punitive damages. However he complains of malice in the publication, his pleading was unmistakable notice to the defendant that no exemplary damages were claimed on that score. This omission does not make the petition demurrable, but is it not to be taken as something of an estimate by learned counsel on the gravity of the libel? Is it not to be reckoned with from that viewpoint? We pass the matter without deciding it, and need not' allow it as a controlling element of the case. This brings ns to the main question: Was the petition good?

(a) Some of the words said to be poisoned with a libelous sting are “killing” and “killer.” In the companion case, supra, the word was “killed” and we concluded that, interpreted in the light of the context, it was not ambiguous and was not fairly susceptible of being construed to mean the unlawful or criminal taking of human life. We follow that ruling on the .words “killing” and “killer.” The natural import of “to kill” is to deprive of life, and of “killer” is one that kills. The opinion in the other case must be taken with this on those words (quod vide.) They are not libelous per se unless the context gives them a libelous twist or color, and the context in the article we are considering does not do that here any more than the other article did there. Libel cannot hang on so slender a thread as a mere matter of taste in the penman’s selection of one word instead of another one, interchangeable as a synonym or (by condensation) in using laconically one word instead of expanding and diluting his idea into a phrase, thereby toning and softening it down. The use of a given word often make the stroke that of a feather. The use of another may make the stroke that of a hammer. When the purpose is honest, as gathered from the whole publication, when the discussion is on a matter of live and public concern (as here), and there are no earmarks of malice through invectives, vituperation or calumny, and where the publication does not pertain to the private business and the private character, of the individual, or charge corruption, or other misdemeanor to one clothed with authority in a defamatory way — we say, when such condition of things appears, then a writer may use a hammer instead of a feather in fulminating argumentatively.

(b) The main contention of the counsel is that the phrase, “wantonly taken the life of an innocent child in direct violation of law,” imputes a crime— therefore, it is libelous per se. But that phrase is only part of a sentence, and to bear the libelous construction put upon it by the plaintiff’s innuendo, it must be wrenched from its context. Standing alone as a statement of existing fact, we would agree with learned counsel that the words charged a crime and were actionable per se. The trouble is the words do not stand alone. The context shows that they were used argumentatively and by way of hypothesis. Now, it goes without saying that an hypothesis is not equivalent to a statement of fact. The context shows that there is no such charge made against plaintiff by direct statement or by logical inference or by roundabout insinuation as will presently appear.

In leading up to a just conclusion, we must take a bird’s-eye view of the whole article. Obviously, it is aimed at Dr. Baron and his official conduct (as coroner as well as the conduct of a coroner’s jury) and that of other officials. It undertakes to discuss that conduct in relation to the death of a child on the street through a collision with an automobile. We do not rule that A may not libel B in criticising C; A may strike B over C’s shoulder. But, as ruled in the former case, so we rule now, the malice supporting an action of libel must flow from defendant to plaintiff and not to another. So that, for the libel, if any, to Baron or the other officials, he or they must sue. This plaintiff can recover nothing on that score unless he goes further and shows he, himself, was libeled.

It seems shortly before the fifth day of May, 1906, a little girl, Gertrude Copeland was killed on a street in St. Louis by an automobile driven by plaintiff as chauffeur. The automobile was that of the Health Commissioner of the city of St. Louis. It seems the chauffeur reported to his employer, the Health Commissioner, and the latter took the matter up with Doctor Baron as Coroner. We infer the chauffeur was then in the custody of the police.

The Health Commissioner, on the strength of the representation of his servant, took the servant’s view of it, viz., that he was not to blame for the death of the child. The Coroner, after consulting with the Health Commissioner, took the Health Commissioner’s view of it and gave a written order for the release of the chauffeur or an order resulting in his release from custody. With this condition of things the writer of the article was not in accord. Finally, a coroner’s inquest was held and its finding was to the effect that the chauffeur was not to blame. It is common knowledge that while an investigation by a coroner is judicial in its character, yet the coroner does not stand precisely in the attitude of a judge to a jury in a court of justice. To the contrary, he takes part in the investigation and verdict, commonly participates in the jury’s deliberations, and the verdict not infrequently takes color from his predilections and conclusions. In this view of the matter the writer of the article chose to criticise the coroner for having prejudged the cause of the death of the little girl before inquest held, and for having officially meddled in procuring the release of the chauffeur from the custody of the police on an ex parte showing by the chauffeur alone and without an impartial investigation of the facts. The article goes on to throw doubt upon the' value of the verdict of the coroner’s jury. In doing so the writer of it argues that the jury could do no less than to find the chauffeur without blame, because to find he was to blame was equivalent to condemning what had already been done by the police department, the health commissioner and the coroner. A verdict against the chauffeur, he argued, was not to be expected since such verdict would be to convict the coroner et al. of an atrocious act. What atrocious act? “The atrocious act of setting at liberty a man who had wantonly (not in fact, but as the jury had just found in that hypothesis) taken the life of an innocent child in direct violation of law.” That is to say, if the jury had rendered a verdict to the effect that the child came to its death at the hands of the driver of the automobile, through his wanton (that is, his reckless) conduct, then by the same token the coroner was guilty of the atrocious act of setting such a man free.

We make nothing more out of the words than an illustration by way of hypothesis used arguendo, to show that the coroner’s verdict had no significance, and was produced by evil precedent conditions. To make a statement of fact out of the hypothesis of the writer would be a most unfair, forced and unnatural construction. A demurrer reaches the vice of such a construction. [ Diener v. Star-Chronicle Pub. Co., supra.]

The writer goes on to argue, in effect, that under the circumstances outlined the coroner’s inquest was mere mummery “to save the faces” of the officials in a matter of sharp concern to the public, which matter they had already and improperly prejudged and determined.

In this condition of things, we can very well see how the coroner’s jury or the officials might grieve over the accusation. But, as said, the question of libel or no libel as to them is not here. In tbe defendant’s statement of its ease against tbe officials, the transaction in which they are said to be derelict had to be described. To do so necessarily involved the mention of the chauffeur directly or by implication. He was mentioned. Plis connection with the child’s death was set forth and, broadly speaking, the alleged libel is no more than a public denunciation of those officials for putting themselves in a situation seemingly precluding a fair and searching coroner’s quest into the cause of the child’s violent death.

(c) There is other language criticised as either libelous, or as feathering the libelous arrow in the phrase just considered under paragraph b, viz.: ‘‘ Further, such a finding would make the chauffeur responsible for a criminal offense for which he might be sent to the penitentiary for life and from the consequence of which he could easily have freed himself while he was at liberty.” Stress is laid on the words “criminal offense,” the words “penitentiary for life” and the idea of the chauffeur fleeing; but, taking the whole paragraph with what goes before and after, a reasonable reader could not construe it as a statement of fact, or that the chauffeur had actually committed a criminal offense for which the law might consign him to the penitentiary for life, or that he was likely to take leg-bail for it. The paragraph in hand was but part of the hypothesis discussed by the author of the screed, tending to throw cold water on the verdict. It was based on what would be the effect of a coroner’s verdict condemning the chauffeur, and was but leading up to the conclusion that ho such verdict was a possibility after the coroner had taken a position in favor of the chauffeur, as his conduct indicated— conduct characterized as “the high-handed handling of the case.” The paragraph is followed'by another leaving no doubt of the writer’s meaning, viz.: “If the coroner had brought about such a finish to the investigation, he would have been a rare man indeed.” The context, instead of aiding plaintiff’s innuendo, entirely explodes it.

(d) Finally, it is argued that the- tendency of the publication was to expose plaintiff to “public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, etc.” [R. S. 1899, sec 2259:] But he who thinks that an article merely having that tendency is either a civil or a criminal libel has studied the law of libel to little purpose. The controlling words in that section are “malicious defamation” by means of printing and writing, etc.,- tending’ to provoke him to wrath or expose him, etc. There must be defamation in a libelous sense before there can be a libel. Otherwise, alarming results would follow. For instance: in a community believing in beer and wine drinking a good devotee of total abstinence would be libeled by a mere expose of his true principles, thereby necessarily holding him xxp to public scorn, contempt, etc., among his bibulous neighbors. To make a libel there must be defamation in the sense of the law before the public scorn and contempt feature is operative. Defamation includes the idea of calumny, aspersion by lying — the injury of another’s reputation in that way. To defame is to speak evil of one maliciously, to dishonor, to render infamous. Whether the words of the publication could reasonably bear such interpretation was a question of law. [Diener v. Star-Chronicle Pub. Co., 230 Mo. 613; Donaghue v. Gaffy, 54 Conn. 257; Heller v. Pulitzer Pub. Co., 153 Mo. 205; Urban v. Helmick, 15 Wash. 155; Ukman v. Daily Record, 189 Mo. l. c. 390; Branch v. Knapp and Co., 222 Mo. l. c. 587-8.] We think it was well decided.

(e) The doctrine of the right of free speech and free press discussed in the other case applies as well to this and leads to the same conclusion.

The premises all considered, the judgment was right. Let it he affirmed.

The foregoing opinion was written in Division One by Lamm, J. The case came into Banc on the dissent of a judge of that Division. On reargument in Banc, the divisional opinion of Lamm, J., became the opinion of the court. Accordingly, the judgment is affirmed.

Graves, Ferriss and Brown, JJ., concur. Wood-son and Kennish, JJ., dissent, Woodson, J., in an opinion filed; Valliant, G. J., absent.

DISSENTING OPINION.

WOODSON, J.

This is a suit brought by thé plaintiff against the defendant to recover $25,000 damages, sustained by him in consequence of the publication, by the latter, of the alleged libelous article set out in the petition.

A demurrer to the petition was filed and sustained, and by leave of court an amended petition was filed by plaintiff. The defendant filed a motion to strike this petition from the files, for the reason that the amended petition was but a replica of the original, which had been held bad on the first demurrer filed. Said motion also contained a general demurrer. This motion and demurrer were by the court sustained; and the plaintiff declining to plead further, judgment was duly rendered against him and in favor of the defendant. Prom that judgment the plaintiff' duly appealed to. this court.

The amended petition, which the court adjudged bad, reads as follows:

“Now comes Joseph Diener, plaintiff in the above entitled canse, and files this his second petition, and for canse of action states that the defendant, Star-Chronicle Publishing Company, was and is at all times hereinafter mentioned a corporation duly organized and existing under the laws of the State of Missouri. That at the time hereinafter mentioned said defendant was the publisher, proprietor and printer of a certain daily newspaper of large circulation in and about the city of St. Louis, which said newspaper is published in the city of St. Louis, State of Missouri, and is known as the ‘St Louis Star-Chronicle
“That on, to-wit,. the 5th day of May, 1906, there was printed and published in said newspaper the following false, defamatory and libelous article or language of and concerning the plaintiff, to-wit:
AND THE CHILD SAID NOTHING. The Coroner’s investigation into the death of little Gertrude. Copeland, who was TORN TO PIECES by Health Commissioner Bond’s automobile, held the dead child guilty of contributory negligence, and in this way released the chauffeur from legal responsibility, as far as a Coroner’s quest can., What chance on earth was there that it should have done anything else?
Coroner Baron had already decided that Chauffeur Diener WAS IN NO WAY RESPONSIBLE for the killing by ordering the police to turn him out free on the night of the arrest, without a charge or a bond to hold him.
The Coroner took this action on the pledge of the Health Commissioner that he was sure the chauffeur was in no way to blame for the awful death.
The police acted on the written order of the Coroner.
To hold Chauffeur Diener directly responsible for the killing now would be to hold the police department, the Health Commissioner and the Coroner responsible for the atrocious act of setting at liberty a man who had WANTONLY TAKEN THE LIFE OF AN INNOCENT CHILD, in direct violation of the law.
Further, such a finding would make the chauffeur responsible for a criminal offense for which he might be sent to the penitentiary for life, and from the consequences of which he could easily have fled while he was at liberty.
If the Coroner had brought about such a finish to the investigation, he would have been a rare man, indeed.
Investigation of the high-handed handling of the case reveals that on the night of the tragedy the police released the chauffeur from all responsibility on the authority of Coroner Baron; that the Coroner acted on the information of Health Commissioner Bond, and that Health Commissioner Bond got all his information entirely from the chauffeur, who rushed home to tell his boss that he had run over a child, but was riot to blame.
Thus, on the single and unsupported statement of Chauffeur Diener, who did the killing, the killer was released.
To “SAVE THE PACES” of the officials involved, the child had to be guilty of “CONTRIBUTORY NEGLIGENCE.”
The chauffeur told the Health Commissioner and the Health Commissioner told the Coroner, and the Coroner told the police— but the pretty little innocent child told nobody, because she “DIED ALMOST INSTANTLY.”
‘ ‘ [Thereby meaning to charge this plaintiff with having committed a crime involving moral turpitude, and with having willfully and wantonly taken the life of a human being.
“That at all times referred to in said publication the plaintiff was the chauffeur of Health Commissioner Bond, which fact the defendant well knew, and that this plaintiff was the chauffeur and the person to whom the defendant referred in said publication.]
“Plaintiff further states that said publication was willful and malicious, and that he has been damaged thereby in the sum of twenty-five thousand dollars.
“Wherefore, plaintiff prays judgment in the sum of twenty-five thousand dollars and his costs.”

The only difference between the original and amended petition is, the former contained no innuendo or colloquium, while the latter does, which is embraced in brackets, as above appears.

The errors assigned by counsel for appellant are as follows:

“1. The court erred in sustaining the demurrer to the original petition.
“2. The court erred in striking the second amended petition from the files.
“3. The court erred in entering judgment for the defendant.
“4. The court erred in overruling plaintiff’s motion for a new trial.”

I. The first proposition presented for determination by counsel for appellant arraigns the action of the circuit court in striking out his amended petition.

If the amended petition was in fact but a replica of the original, then the trial court properly struck it from the files, as was held by this court in the case of Scott v. Taylor, 231 Mo. 654. To the same effect are the following cases: Savings Association v. Clause, 13 Wyo. 166; McKee v. Railroad, 121 Iowa 550; Enright v. Midland Sampling & Ore Co., 33 Colo. 341; Hoyt v. Beach, 104 Iowa 257.

In this connection counsel for respondent contend that after the court sustained the motion to strike the amended petition from the files, and granted appellant leave to file a second amended petition, and he having declined to do so, the court properly entered judgment for the respondent.

This contention is predicated upon the further contention that, the original petition having been adjudged bad, the only thing remaining for appellant to do was to stand on the demurrer or file an amended petition, and not a duplicate of the original; but instead of doing that, he filed a replica, which, when stricken out, left nothing for the court to do except to enter final judgment against him; and that he has no right of appeal, because the petition was adjudged bad under the first demurrer, which was unappealed from, and which could not be appealed from at the subsequent term, the term at which the motion to strike out was sustained; consequently, the only thing the court could properly do was to enter final judgment for the defendant, which was done.

Some of the cases before cited support that contention of counsel, but that is not the practice in this State. Plere, when the demurrer to the original petition was sustained, the appellant could either have stood upon the demurrer and let judgment go against him and appealed therefrom, or he could have availed himself of the right (as he did here) to file an amended petition; and, having chosen the latter course, there was no final judgment rendered upon the demurrer to the original petition from which an appeal could have been taken; and the mere fact that he may have filed a duplicate of the original instead of an amended petition could not have changed the character of the order actually entered on the demurrer to the original petition into such a judgment as would prevent the circuit court from passing upon the so-called amended petition, whether it was á duplicate of the original.or not. The only purpose of filing a motion to strike out the amended petition where it is in fact a duplicate of the original which has been held insufficient, is to take a short cut on the plaintiff, and thereby prevent dilatory practice and pleas by having the duplicate stricken out and final judgment entered thereon, without waiting for the plaintiff to file and the court to pass upon the same petition two or three times, which would have to be done if a demurrer should be filed to each. “Where the motion to strike out is sustained because the amended petition is simply a duplicate of the original, no necessity exists for the court to make an order allowing plaintiff to file a second amended petition, for the reason he has thereby abandoned his right to file a second under sections 621, 622 and 623, Revised Statutes 1899. [Scott v. Taylor,- supra.]

Since taking that view of the case, which we think is the correct one, it becomes unnecessary for us to pass upon the question as to whether the amended petition is a replica of the original or not.

II. This brings us to the consideration o'f the main proposition presented by this record, namely: does the amended petition filed in the cause state facts sufficient to constitute a cause of action, or, in other words, does the language charged in the petition to have been published of and concerning the appellant constitute a libelous charge? Counsel for appellant contend that it does, while those for respondent deny it.

Both the demurrer to the petition and the motion to strike the amended petition from the files not only admit the publication of the article complained of but also all legitimate inferences which may be reasonably drawn therefrom. Upon that state of the case the only thing the court has to do is to determine whether or not the construction placed upon the article by counsel for appellant can be reasonably drawn therefrom.

In order to determine that question we should bear in mind the definition of a libel as stated in section 2259, Revised Statutes 1899: “A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse or any malicious defamation made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.”

Since it is admitted that the article complained of was published of and concerning the appellant, we will, in the light of the foregoing definition of libel, try and determine whether or not said article “tended to provoke appellant to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse.”

Counsel for appellant point us to the following language contained in said article which they contend tends to expose the appellant to public hatred and contempt, and to deprive him of the benefits of public confidence and social intercourse, to-wit, that the appellant is “a man who had wantonly taken the life of an innocent child in direct violation of the law.”

We can conceive of no language which could be published of and concerning a man which would more-strongly expose him to public hatred and contempt, or to deprive him of the benefits of public confidence and social intercourse than those here published, namely, that he had wantonly, recklessly, heedlessly or maliciously taken the life of an innocent little girl, in direct violation of law. This is the plain and ordinary meaning to be given those words; and in order to determine whether or not they would tend to expose appellant to public hatred and contempt, or to deprive him of the benefits of public confidence and social intercourse, one need but ask himself the question, what he and all right thinking people would think of a man who would wantonly or maliciously take the life of a little innocent girl? Inevitably the anwer must be that he not only richly deserved public hatred and contempt and should be deprived of the benefits of public confidence and social intercourse, but also that he should be severely punished therefor by imprisonment in the penitentiary, if not hung on the gallows. No self-respecting person could have any confidence or respect for such a man.

Counsel for respondent endeavor to place a different or modified construction from what we háve upon the language before quoted from said article by contending that the entire paragraph should be read and construed together.

Let us see about that — the entire paragraph reads as follows: “To hold Chauffeur Diener directly responsible for the killing now would be to hold the Police Department, the Health Commissioner and the Coroner responsible for the atrocious act of setting at liberty a man who had wantonly taken the life of an innocent child, in direct violation of law.”

By reading this entire paragraph, it will be seen that it makes two charges: one against the Police Department, the Health Commissioner and the Coroner, and the other against the appellant. It also appears therefrom that the charge made against the former is conditional, while that published against the latter is unconditional: and that the basic fact upon which the said conditional criticism is made, namely, to now hold Diener responsible for the killing, would be to hold the Police Department, Health Commissioner and Coroner' responsible for the atrocious act of setting at liberty the appellant, is the unconditional charge made in the publication that the appellant “had wantonly taken the life of an innocent child, in direct violation of the law.” Or,, in other words, the charge made against the Police Department, Health Commissioner and Coroner is conditional in character, but that published of and concerning the appellant is unconditional, in that it charges him with “wantonly taking the life of an innocent child, in direct violation of the law. ”

There would be no sense or meaning in the charge made against the Police Department, Health Commissioner and Coroner if Diener, the appellant who was discharged by them, was an innocent man; but in order to make the'charge lodged against those officers effective, the respondent had to assume and charge that appellant was a criminal and should be severely punished therefor.

The.construction we have placed upon the paragraph before mentioned is strengthened’ and made clearer by another paragraph contained in the same article, which is as follows: “Thus on the single and unsupported statement of Chauffeur Diener, who did the killing, the killer was released.” By reading this language in connection with the previous paragraph, we can see no escape from the conclusion that the writer of the article in question intended thereby to charge Diener with a criminal offense, namely, that of wantonly or maliciously killing an innocent child, “for which [in the language of the article] he might be sent to the penitentiary for life.”

There are scores of authorities which hold that such language published of and concerning a person is libelous per se. [R. S. 1899, secs. 1815, 1816, 1817, 1835, 2375; Julian v. Star Publishing Co., 209 Mo. 35; Minter v. Bradstreet, 174 Mo. 485; Noeninger v. Vogt, 88 Mo. 589; Ferguson v. Chronicle Pub. Co., 72 Mo. App. 462; Hermann v. Bradstreet, 19 Mo. App. 227; Commercial Pub. Co. v. Smith, 149 Fed. 704; O’Shaughnessy v. Record Co., 58 Fed. 653; Meriwether v. Knapp, 224 Mo. 617.]

Not only does the entire article, when read as a whole, constitute a libel against appellant, as previously defined, but there are two or more paragraphs contained in the article which separately constitute libelous charges against the appellant, if they are not true in point of fact. For instance, the charge that appellant “had wantonly taken the life of an innocent child, in direct violation of the law,” is libelous, for the reason that the word “wanton” means reckless; heedless; malicious. [Webster’s New International Dictionary.]

And malice means, in a legal sense (the sense in which the article in question used it), a wrongful act intentionally done without just cause or excuse. [State v. Schoenwald, 31 Mo. 147; State v. Weeden, 133 Mo. 70; North Carolina v. Vanderford, 35 Fed. 282; State v. Massey, 97 N. C. 465; Branch v. State, 41 Tex. 622; Trauerman v. Lippincott, 39 Mo. App. 478.]

According to these authorities, the language last quoted accused the appellant of wantonly or maliciously killing Gertrude Copeland; and if that accusation is true, then he is guilty of a crime for which he is punishable by imprisonment in the penitentiary. [See statutes before cited.] This was also true at common law. But if that charge is not true, it is libelous per se. [Noeninger v. Vogt, 88 Mo. 589'. Also see cases before cited.]

The following paragraph contained in said article is also libelous per se, viz.: ‘‘ Thus on the single and unsupported statement of Chauffeur Diener, who did the killing, the killer was released.”

The authorities are uniform in holding that language to be libelous. [Button v. Heyward, 8 Mod. 24; Jones v. Murray, 167 Mo. 25, l. c. 30; Noeninger v. Vogt, supra; Cooper v. Smith, 1 Rolle’s Abridgment; Doan v. Kelley, 121 Ind. 413; Thomas v. Blasdale, 147 Mass. 438; McLaughlin v. Cowley, 131 Mass. 70; Publishing Co. v. Jones, 83 Tex. 302; Carroll v. White, 33 Barb. 615; Hays v. Hays, 1 Humph. 402; Cady v. Times Co., 58 Minn. 329.]

Evidently, the respondent placed the same construction upon the article that we have. That fact is manifested by the statement that appellant’s act of killing might make him responsible for a criminal offense for which he might be sent to the penitentiary for life. Under the laws of this State a person cannot be sent to the penitentiary for killing a human being without the act was either murder or manslaughter. So, evidently, as before stated, the writer of the article thought and intended thereby to charge appellant with some criminal offense punishable by imprisonment in the penitentiary.

So it is seen that whether we consider this publication as an entirety or by paragraphs, it is libelous.

I am, therefore, of the opinion that the trial court erred in holding that it was not libelous in character; and for that reason the judgment should be reversed and the cause remanded for another trial.

Kennish, J., concurs.