Norris v. Elliott

39 Cal. 72

• Court: California Supreme Court
• Decided: July 1, 1870
• Docket: No. 2,190
• Status: Published

Opinion

Crockett, J.,

delivered the opinion of the Court:

There is in this case no point deserving of serious consideration on the appeal. The slanderous words on which the action is- founded, were sufficiently proved substantially as alleged in the complaint; and there was proof tending to show that they were spoken within one year before the commencement of the action. It is not necessary they should have been shown to have been spoken on the precise day alleged in the complaint. It is sufficient that they were spoken within so recent a period as to avoid the bar of the Statute of Limitations, even though the statute had been relied upon in the answer as a defense. But no such defense is set up in the answer. On the contrary, the answer denies that they were spoken at the time and place alleged, “or at any other time, at the County of Sacramento, or anywhere else,” and the statute is not pleaded as a defense. Under this state of the pleading, there was no error in admitting proof of the speaking of the words at any time before the commencement of the action. Unless it appears on the face of the complaint that the action is barred by the statute, the answer must set up that defense, if the defendant intends to rely upon it. Nor did the Court err in admitting proof that the slanderous words were repeated after the action was commenced. This proof was offered and admitted only as a proof of malice and was competent for that purpose. (2 Stark, on Slander, 57; 6 Hill, 518; 6 How. Pr. R. 290; 33 Ala. R. 78.)

On the whole, we think there is no merit in the appeal, and that the judgment ought to be affirmed.

So ordered.