Roberts v. Parker

299 S.W. 779, 156 Tenn. 82, 3 Smith & H. 82, 1927 Tenn. LEXIS 86

• Court: Tennessee Supreme Court
• Decided: November 21, 1927
• Status: Published

Opinion

Mr. Justice McKinney

delivered the opinion of the Court.

This is a libel suit, which was dismissed upon demurrer, on the ground that the communication, made the basis of the complaint, is absolutely privileged.

Plaintiff was elected to the office of sheriff in the August, 1924, election. On August 30th defendants filed with the County Judge of Boane County a petition protesting against the induction of plaintiff into office on the ground that he had formerly held said office, and that, at the expiration of his term, he was a defaulter and ineligible to again fill the office, and that his election was void by virtue of section 1069 of Shannon’s Annotated Code.

The declaration averred that said publication was untrue, was known to be false, and was made maliciously.

It is a recognized principle of law that a publication in a judicial proceeding, although made with malice, if pertinent to the proceeding, or if fairly supposed to be pertinent, is absolutely privileged. Cooley v. Galyon, 109 Tenn., 1; Crockett v. McLanahan, 109 Tenn., 517; 36 C. J., 1239; 17 R. C. L., 330.

In the case under consideration we are of the opinion that the matter set forth in the petition was pertinent to the issue involved. If, therefore, the proceeding in the county court was judicial the communication was absolutely privileged.

The procedure of the defendants, by which the issue of ineligibility was raised, has been approved by this court in a number of cases, to wit: Day v. Sharp, 128 Tenn., 340; Lewis v. Watkins, 71 Tenn., 174; Pucket v. Bean, 58 Tenn., 600; Blackburn v. Vick, 49 Tenn., 377; Marshall v. Kerns, 43 Tenn., 68; Newman v. Justices, 25 Tenn., 41.

Necessarily the action of the court in determining the issue thus raised was judicial in character, and, therefore, the publication, although maliciously made, was absolutely privileged. Affirmed.