Petition for Writ of Certiorari — Vaughan v. Brandon, Brandon, Hornsby & Handy

Caption

VI.

VII. Conclusion

SUBJECT INDEX

Opinions of the Courts Below

Grounds on Which the Jurisdiction of This

Court Is Involved

. The Questions Presented for Review...

. The Constitutional Provisions and Stat-

utes Which the Case Involves

Statement of the Case Containing the Facts

Maierial to the Consideration of the Ques-

tions Presented

Argument.

A. May a Circuit Court of Appeals, Unable

to Sustain the Judgment of the District

Court on the Grounds Assigned by the

District Court, Affirm Upon Other

Grounds Not Even Raised in the Lower

Court ?

B. May the Defense of Absolute Privilege

Be Raised in the Court of Appeals for

the First Time; Especially Where Its

Effect is to Adjudicate a question of

Fact? Petitioner Maintains That Had

the Complaint’s Allegation of Malice

Been Denied by Respondents; Peti-

tioner Would Have Been Entitled to

Have That Fact Passed on by Jury De-

mand For Jury Trial Having Been

Made

bn

13

16

ii Index

2e

= o

Affidavit of Service

Appendix ‘‘I’”’ App. 1

wel | App. 2

“TIT” App. 3

Appendix ‘‘A”’ App. 4

669? App. 5

gy? App. 6

667°? App. 7

come”? App. S

Table of Cases

Baker v. Sisk, 1 F.R.D. 232 14

Bass v. Hoagland, 172 F. 2nd 205 19

Frederick Smith Enterprise Co. v. Lucas, 204 Miss.

43; 36 So. 2d 812 15

Gibbs v. Buck, 307 U. S. 56; 59 S. Ct. 725; 83 L. Ed.

1111 ainda 14

Gunter v. Reeves, 21 So. 468 12

Harrison v. Remington Paper Co., 140 Fed. 385,

Cert. Denied 199 U. S. 607; 50 L. Ed. 331; 26 S.

Ct. 747 15

Hawkins v. Scottish Union & Natl. Ins. Co., 110

Miss. 23; 69 So. 710. 15

Merko v. Sturm & Dillard Co., 233 Fed. 68, Cert.

Denied 242 U.S. 630; 61 L. Ed. 536; 37S. Ct. 14... 15

Morrill v. Jones, 106 U. S. 466; 1 S. Ct. 423; 27 L.

Ed. 267 16

Index iii

Page

Roberts v. Metropolitan Life Ins. Co., 95 Fed. 2d

277, Cert. den. 303 U. S. 660; 82 L. Ed. 1119; 58

S. Ct. 764; 304 U. S. 570; 82 L. Ed. 1530; 58 C. Ct.

1039 16

Taliaferro v. Sims (5th CCA) 187 F. 2nd 6... 12

Vaughan v. Brandon, et al (5th C.C.A.) 209 F. 2nd

954 2

White v. Nicholls, 3 How. 266; 11 L. Ed. 591.16, 19

Constitution

FIFTH Amendment to the Constitution

U.S.C. A. ‘Amendments 1 to 13”’, p. 102.0. 4

NINTH Amendment to the Constitution

U.S. C. A. ‘Amendments 1 to 13’’, p. 414.4, 19

FOURTEENTH Amendment to the Constitution

U.S. C. A. ‘‘Amendments 14 to End’’, p. 12... 4,19

Statutes

Rule 7(a) Federal Rules of Civil Procedure,

28 U.S.C. A 4,13, App. 5

Rule 8(c) Federal Rules of Civil Procedure,

28 U.S.C. A 4, 13, App. 4

Rule 8(d) Federal Rules of Civil Procedure,

28 U.S.C. A 4, 14, App. 4

Rule 12(b) Federal Rules of Civil Procedure,

28 U.S.C. A 4, 13, App. 6

Rule 38 Federal Rules of Civil Procedure,

28 U.S.C. A 4,19, App. 7

Rule 56(a) Federal Rules of Civil Procedure,

28 U.S.C. A 4,11, 14, App. 8

Rule 56(¢) Federal Rules of Civil Procedure,

28 U.S.C. A 4,14, App. 8

iv Index

Page

Rule 56(e) Federal Rules of Civil Procedure,

28 U.S.C. A. 4, App. 8

Title 28 U.S. C. A. Section 1254(1) 3

Title 11, U. S. C. A., Chap. 3, Sec. 29 18

Section 732 Mississippi Code, 1942 Anno.

(Appendix I) 4, 6,13, App. 1

Section 744 Mississippi Code, 1942 Anno.

(Appendix IT) 4, 6, 12, 14, 15, 19, App. 2

Section 1604 Mississippi Code, 1942 Anno.

(Appendix ITT) 4, App. 3

Textbooks

The Collier Bankruptcy Manual, 1948, p. 162... 18

12 Amer. Jur. Constitutional Law, Sec. 622 19

IN THE

SUPREME COURT

OF THE

United States

October Term, A. D. 1954

JACK C. VAUGHAN,

Petitioner,

vs.

BRANDON, BRANDON, HORNSBY } No. at

& HANDY, and THE TEXAS COM-

PANY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

| TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

To the Honorable, The Chief Justice and The Associate

Justices of the Supreme Court of the United States:

The petition of Jack C. Vaughan, plaintiff and

appellant below, and petitioner herein, respectfully

shows:

aor ee

I.

OPINIONS OF THE COURTS BELOW _....

A. The ORDER of the United States District

Court for the Southern District of Mississippi of July

10, 1953, dismissing the claim of plaintiff, is to be

found at pages 34 and 35 of the Record. It is not offi-

cially reported.

B. The OPINION of affirmance of the United

States Court of Appeals for the Fifth Circuit of Feb-

ruary 9th, 1954, is reported in 209 F. 2nd 954.

GROUNDS ON WHICH THE JURISDICTION

OF THIS COURT IS INVOLVED

This case involves a question of importance which

it is in the public interest to have decided by this Court

of last resort. Petitioner asserts an invasion of his

substantive right under the Federal Constitution to

equality of treatment and deprivation of property

without due process. The Court of Appeals has so far

departed from the accepted and usual course of judi-

cial proeeedings and also has so far sanctioned such

a departure by the lower Court as to call for an exer-

cise of this Court’s power of supervision.

A. The JUDGMENT of the United States Court

of Appeals for the Fifth Circuit which petitioner seeks

to have reviewed, was dated and entered on February

9th, 1954. (Tr. 54.)

acl

B. The ORDER of said Court of Appeals denying

petitioner’s Petition For Rehearing was dated and

entered on April 12th, 1954. (Tr. 62.)

C. The STATUTORY PROVISION believed to

confer on this Court jurisdiction to review the judg-

ment in question by writ of certiorari is Section

1254(1), Title 28, U.S.C.A.

III.

THE QUESTIONS PRESENTED FOR REVIEW

A. May a Circuit Court of Appeals, unable to sus-

tain the judgment of the District Court on the grounds

assigned by the District Court, affirm upon other

grounds not even raised in the lower Court?

B. May the defense of ‘‘absolute privilege’’ be

raised in the Court of Appeals for the first time;

especially where its effect is to adjudicate a question

of fact? Petitioner maintains that had the complaint’s

allegation of malice been denied by respondents; peti-

tioner would have been entitled to have that fact

passed on by jury—demand for jury trial having been

made.

sails

IV.

THE CONSTITUTIONAL PROVISIONS AND

STATUTES WHICH THE CASE INVOLVES

A. The Fifth Amendment to the Constitution of

the United States, U.S.C.A. ‘“‘Amendments 1 to 13”’

page 102:

**No person shall . . . be deprived of . . . prop-

erty, without due process of law. . . .”’

B. The Fourteenth Amendment to the Constitution

of the United States, U.S.C.A. “Amendments 14 to

End”’ page 12:

‘*No State shall deprive any person of . . . prop-

erty, without due process of law; nor deny to any

person within its jurisdiction the equal protection

of the laws.”’

C. The Ninth Amendment to the Constitution of

the United States, U.S.C.A. ‘““Amendments 1 to 13”

page 414:

‘The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage

others retained by the people.’’

D. Rules 7(a), 8(c) (d), 12(b), 38 and 56 (a) (ce)

and (e) of the Federal Rules of Civil Procedure, Title

28 U.S.C.A. (See Appendix. )

D. Sections 732, 744, 1604 Mississippi Code 1942

Annotated (See Appendix).

ra

V.

STATEMENT OF THE CASE CONTAINING THE

FACTS MATERIAL TO THE CONSIDERATION

OF THE QUESTIONS PRESENTED.

A. Basis for Federal Jurisdiction in the Court of

first instance: The complaint was filed by plaintiff

below, petitioner here, in the United States District

Court for the Southern District of Mississippi, West-

ern Division, on June 12th, 1953 (Tr. 1). The grounds

upon which the jurisdiction of the Court was invoked

was diversity of citizenship and the matter in contro-

versy exceeded Three Thousand Dollars (Tr. 2). As

alleged in the complaint, petitioner was a citizen of

Louisiana ; the respondents (defendants below), Bran-

don, Brandon, Hornsby & Handy were citizens of

Mississippi; and the respondent The Texas Company,

a Delaware corporation, whose designated agent for

service of process in Mississippi was, W. H. Watkins,

of Jackson, Mississippi (R. 1-2). All respondents were

served with the complaint and summons (Tr. 10). No

issue as to jurisdictional defects were raised by respon-

dents.

B. Statement Of The Facts:

This is a ease of slander in which the petitioner,

Vaughan, seeks recovery of damages of $98,528.43 to-

gether with his costs (Tr. 8). The complaint alleges

that the respondents made the false, malicious and

slanderous remarks that petitioner had ‘‘taken bank-

ruptcy’’, imputing the desire on petitioner’s part to

po on

‘*get out of’’ or otherwise avoid paying his legal and

moral obligations (Tr. 2-3). That the slanders were

maliciously calculated to injure the financial standing

and reputation of petitioner (R. 4). That as the result,

petitioner’s credit was irreparably ruined, his finan-

cial plans and operations embarrassed ; and he was at

length compelled to leave Mississippi, take up resi-

dence in another State, and there attempt to start his

life anew (Tr. 5). That the slanders were utterly false

in that at no time in his life had petitioner ever taken

bankruptcy or sought to take bankruptcy (R. 4). Peti-

tioner demanded jury trial (R. 5).

The complaint further alleged that, in accordance

with Mississippi law requiring institution of actions

for libel and slander within one year, (Appendix I)

this same cause of action was filed in the County Court

of Adams County, Mississippi, on June 7, 1952 as a

cross-complaint in a suit involving petitioner and re-

spondents (R. 3). That on June 19th, 1952, the cross-

complaint was abated without prejudice to bring a

new action (R. 3) in a proper forum (R. 29). That

this action was now brought in the stead of the cross-

complaint and duly commenced within the time

_ permitted by Section 744, Mississippi Code 1942,

Annotated, Appendix II, which states in part:—‘If

in any action, duly commenced within the time allowed

.. . the action (shall be) . . . avoided for any matter

of form. . . the plaintiff may commence a new action

for the same cause, at any time within one year after

the abatement or other determination of the original

waist

suit... ’’ (R. 4). The Cross-Complaint (R. 6) and the

Order of the County Court of June 19, 1952 abating it

(R. 9) were attached as exhibits to the complaint.

Respondents, defendants below, filed motion to

dismiss on grounds that the complaint failed to state

a claim upon which relief could be granted, and for

the reason that his claim was barred by the Mississippi

one year statute of limitations (Tr. 11). None of the

other allegations of the complaint were denied.

On July 7th, 1953, petitioner served motion for

summary judgment supported by affidavit which

stated in part that one of the respondents, acting with-

in the scope of his authority in behalf of all of the re-

spondents

(6)

** |. arose at the sounding of the said County

Court’s Docket . . . and giving as an excuse for

wishing the case passed to the next term, said to

that Court that he wished the case passed as the

defendant, Jack C. Vaughan, had ‘‘taken bank- -

ruptcy’’—thereby falsely, and publicly, and plain-

tiff verily believes maliciously, imputing a desire

on plaintiff’s part to get out of, or otherwise avoid

paying his legal and moral obligations’’ (Tr. 24).

(7)

‘‘The statement was false, and was known to

be false by the defendants. . . .”” (NOTE: Less

than three months before, plaintiff had previded

respondent, The Texas Company, with a financial

statement showing assets of $131,414.83 plus, and

—8—

liabilities of $98,572.02. Par. 11 of the complaint.

Tr. 4). “‘Deponent will never forget, he believes,

the smirk with which the statement was made, nor

the knowing look to other members of the Bar and

spectators present.”’

(8)

‘*Apparently unknown to the aforesaid (mem-

ber of the respondents) . . ., the plaintiff was

among those court spectators. Deponent immedi-

ately arose (and) denied the false slander... ”’

(Tr. 24-25).

(12)

‘*Plaintiff, deponent herein, shows that the

aforesaid false slander was maliciously calculated

to injure the financial standing and reputation of

of plaintiff . . . at no time in his life has plain-

tiff ever ‘taken bankruptcy’ or sought to take

bankruptcy (R. 25).”’

(13)

‘*Deponent shows that he is at present falsely,

though generally, reputed to have taken bank-

ruptey. And no amount of words, or apologies, or

deeds will ever erase that impression from the

minds of all who have done business with him in

the past. Deponent is now unable to obtain any

credit whatever; when prior to the slanderous

campaign waged against him, his credit line at

one bank alone was well in excess of $30,000.00.

He has been subjected to the ignominy of a wave of

lawsuits for debt, and the attachment of his lands

and farming equipment and means of productivity

senile

and his livelihood. He has been forced into sep-

aration from his wife and his children. He has

been driven by the calumnies into another state,

there to seek rehabilitation (Tr. 26).’’.

The two following communications were also placed

in the record, the first, a letter from petitioner to re-

spondents dated February 25th, 1953, to-wit:

P. O. Box 1373

New Orleans 10, Louisiana

25th February, 1953

REGISTERED MAIL

Messrs. Brandon, Brandon, Hornsby & Handy,

Attorneys-at-Law

Natchez, Mississippi

Dear Sirs:

**During the course of my 1950-52 litigation in

the courts of Arkansas with, I believe, an ex-

lawyer client of your firm; my name became the

subject of attack by certain members of the legal

profession. It was only natural that public notice

would be taken of these smears, and many people.

would accept them as the truth.

‘“‘Of course, that might be helpful to those per-

sons in Arkansas seeking to wrest certain lands

from me.

‘‘There is no doubt in my mind as to where all

these slanders originated. Heretofore, my hands

have been full of other litigation. But now, with

the time and the means at hand, it is my intention

to deal with you in the restoration of my good

villi

name and my previous business and financial

standing.

**As you are well aware, on or about January

14th, 1952, and at various times theretofore, as I

am told, a member of your law firm, acting within

the scope of his authority, publicly made the slan-

derous remark that I had taken ‘‘bankruptey’’—

imputing a desire on my part to ‘‘get out’’ of, or

avoid paying ‘my legal and moral obligations.

‘*The statement was false, was known to be

_ false by the member of your firm that made it;

and the manner in which it was uttered, and the

purpose for which it was uttered, could entertain

no doubt as to malice.

*‘On June 7th, 1952, I took notice of this slan-

der by filing a Cross-Complaint in the same Court

in which the slander occurred—the case of The

Texas Company vs. Jack C. Vaughan, No. 25, in

the County Court of Adams County, Mississippi.

On my motion, on June 19th, this Cross-Complaint

was withdrawn by me without prejudice to bring

a new action in a proper forum.

‘I much prefer to settle this matter without

litigation; but if by March Ist, 1953, it appears

that a settlement is not possible, I intend to forth-

with file suit in the District Court of the United

States, Southern District of Mississippi, against

you and The Texas Company for the amount set

forth in my Cross-Complaint of June 7th, 1952.

Very truly yours,

s/ JACK C. VAUGHAN

CC. ‘The Texas Company Jack C. Vaughan’’

scuicttiitiedh

The second communication, a letter from respon-

dents to petitioner, dated February 27, 1953, was

placed in the record (R. 29-30), to-wit (pertinent por-

tions ) :—

‘*Dear Sir:

‘‘We are in receipt of your letter of February

25, 1953.

‘‘You are hereby advised that no member of

this firm has ever at any time remarked that you

had taken bankruptcy and no such remark has

been made by any member of this firm slander-

ously or otherwise .. .”

Very truly yours,

BRANDON, BRANDON,

HORNSBY & HANDY

s/ H.G. BRANDON

GHB :bgb G. H. Brandon

ec.: The Texas Company

Asserting that there was no genuine issue as to any

material fact, and that plaintiff was entitled to sum-

mary judgment as a matter of law (R. 23), petitioner

moved for summary judgment under the provisions

of Rule 56(a) of the Federal Rules of Civil Procedure

(R. 30).

Nothing contained in petitioner’s affidavit was

denied by respondents; and no opposing or counter-

affidavits were offered disproving it; and no testi-

mony offered in contradiction of the facts set forth

in plaintiff’s (petitioner’s) affidavit.

a

On July 10, 1953, the District Court awarded sum-

mary judgment to respondents (who had not moved

for it) ; and held that the petitioner’s claim was barred

by the one year statute of limitations in Mississippi

(R. 34) and that the bar of the Statute of Limitations

‘*has not been saved by virtue of Section 744 of the

Mississippi Code of 1942, Annotated. . . .’”’ (R. 35).

Notice of Appeal was filed on August 4th, 1953 (R.

36).

On February 9, 1954, The United States Court of

Appeals for the Fifth Circuit, instead of sustaining

the district court’s judgment upon the same grounds

as the district court—that the claim of the petitioner

was barred by the statute of limitations—rendered the

following Opinion :—

“The judgment appealed from is affirmed

upon authority of Taliaferro v. Sims, 5 Cir., 187

F. 2d 6, and Gunter v. Reeves, 21 So. 2d 468.’”

(Tr. 53).

which cases had been decided in favor of the defend-

ants on grounds that while the language complained

of was admittedly slanderous; the plaintiffs were ab-

solved because the remarks were ‘‘absolutely privil-

eged’’.

The only question submitted by petitioner for this

Court’s consideration has to do with the question of

the defense of absolute privilege, which was raised, for

the first time, in the Court of Appeals, and which was

strenuously objected to in that Court and in petition-

er’s ‘Petition For Rehearing”’ (Tr. 56, 59-60).

nil cin

Petitioner assumed that the Court of Appeals con-

sidered the grounds upon which the District Court

based its Order of July 10, 1953, erroneous and there-

fore reversible—hence, the reason for the Court of

Appeals basing its opinion upon an entirely different

theory.

VI.

ARGUMENT

A. May a Circuit Court of Appeals, Unable to Sustain

the Judgment of the District Court on the Grounds

Assigned by the District Court, Affirm Upon Other

Grounds Not Even Raised in the Lower Court?

In this case, there is no issue as to any matter of

fact. The respondents’ motion to dismiss (Tr. 11)

asserted ‘‘that the complaint of the plaintiff fails to

state a claim upon which relief can be granted, and

. . . the Plaintiff’s complaint shows that his claim is

barred by Section 732 of the Mississippi Code of 1942,

Annotated .. .’’, that is, barred by the statute of limi-

tations.

Statute of limitations is an affirmative defense

(Rule 8(c) of the Federal Rules of Civil Procedure—

APPENDIX ‘‘A’’) to be asserted in a pleading (Rule

7(a) of the Federal Rules of Civil Procedure—AP-

PENDIX ‘‘B’’); for there is no provision under the

Rules which would permit it to be asserted in a Motion

To Dismiss (Rule 12(b) of the Federal Rules of Civil

Procedure—APPENDIX ‘‘C’’). Therefore _peti-

silat

tioner, plaintiff below, properly treated respondents’

(defendants’) Motion To Dismiss as an ‘“‘answer’’,

Baker v. Sisk, 1 F.R.D. 232. And since all of the aver-

ments in the complaint, except the averment that peti-

tioner’s claim was saved from the bar of the statute

of limitations, were not denied in the respondents’

Answer, and a responsive pleading was required; all

of the allegations of the complaint with respect to the

slanders must be taken as admitted (Rule 8(d) of the

Federal Rules of Civil Procedure—APPENDIX

“*A’’, Gibbs v. Buck, 307 U. S. 56; 59 S. Ct. 725; 83

L. Ed. 1111. And now, since there was no issue remain-

ing as to any material fact; wnless the claim was barred

by the statute of limitations, the petitioner was en-

titled to summary judgment as a matter of law upon

the making of a Motion therefor (Rule 56(a) (c) of

the Federal Rules of Civil Procedure—APPENDIX

‘*K’’). Motion for Summary Judgment was duly filed

by petitioner (Tr. 23, 30), supported by affidavit.

It is obvious that the Circuit Court of Appeals

felt that the District Court had erred in holding that

the petitioner’s claim was barred by the one year

statute of limitations and that bar was saved by virtue

of Section 744 of the Mississipi Code of 1942, Anno-

tated.

Under Mississippi law, a dismissal for want of

jurisdiction (being in the wrong forum), as where the

amount of a Cross-Claim or Counter-Claim far exceeds

a County Court’s $3,000.00 jurisdictional sum, (Ap-

pendix III) is a dismissal for matter of form within

—————

pen ee

the purview of Section 744 of the Mississippi Code,

1942, Annotated, and as such may be brought in a

proper Federal forum having jurisdiction at any time

within one year from date of such abatement. Section

744, Mississippi Code, 1942, Annotated. Frederick

Smith Enterprise Co. v. Lucas, 204 Miss. 43; 36 So.

2nd 812. Hawkins v. Scottish Union and Natl. Ins.

Co., 110 Miss. 23; 69 So. 710.

Further, State laws and decisions regarding exten-

sions of time to bring a new action, after failure of

action other than upon their merits, should be followed

by federal district courts, Merko v. Sturm & Dillard

Co., 233 Fed. 68; certiorari denied 242 U. S. 630; 61

L. Ed. 536 ; 37 S. Ct. 14. Harrison v. Remington Paper

Co., 140 Fed. 385; certiorari denied 199 U. S. 607; 50

L. Ed. 331; 26 S. Ct. 747.

But the Court of Appeals neither sustained the

judgment of the District Court by holding the claim

barred by the Statute of Limitations; nor did it grant

the petitioner summary judgment, to which the peti-

tioner would undoubtedly be entitled in the event his

claim had been saved by Section 744 of the Mississippi

Code, 1942, Annotated, since that was the only issue

raised below.

Instead, the Court of Appeals, interjecting a com-

pletely new defense for respondents, and one which

had never been raised before, held, in effect, that while

all of the facts as alleged by the petitioner were true;

the respondents’ false and malicious slanders were

otal es

absolutely privileged, since they were made during the

course of a legal proceedings. (Tr. 56).

Petitioner would show that since the defense of

‘‘absolute privilege’’ was not made below; and is not

to be found in the Record or in any pleading filed

below by respondents, the Circuit Court of Appeals

had no occasion whatever to even consider it. Morrill

v. Jones, 106 U. S. 466; 1 S. Ct. 423; 27 L. Ed. 267.

Roberts vs. Metropolitan Life Ins. Co., 95 F. 2nd 277.

Certiorari denied 303 U. S. 660; 82 L. Ed. 1119; 58

S. Ct. 764; 304 U. S. 570; 82 L. Ed. 1530; 58 S. Ct.

1039.

B. May the Defense of Absolute Privilege Be Raised

in the Court of Appeals for the First Time; Especially

Where Its Effect Is to Adjudicate a Question of

Fact? Petitioner Maintains That Had the Com-

plaint’s Allegation of Malice Been Denied by Respon-

dents; Petitioner Would Have Been Entitled to Have

That Fact Passed On by Jury—Demand for Jury

Trial Having Been Made.

Even if the Court of Appeals did have power to

interpose a completely new defense; the defense of

‘‘absolute privilege”’ falls far short of enabling respon-

dents to avoid the consequences of their deeds in this

case.

In the case of White v. Nicholls, 3 How. 266; 11

L. Ed. 591, a review of the principles of ‘‘libel and

slander’’ and ‘‘privileged occasions’’ was made by this

<

vinta

Court. At page 291 of 3 How. the following was

stated :

**. . . the following conclusions . . . we pro-

pound as the law: . . . no presumption ean be

permitted to operate, much less be made to sanc-

tify the indulgence of malice, however wicked,

however express, under the protection of legal

forms. We conclude then that malice may be

proved, though alleged to have existed in the pro-

ceedings before a court, or legislative body, or any

other tribunal or authority, although such court,

legislative body, or other tribunal, may have been

the appropriate authority for redressing the griev-

iance represented to it; and that proof of express

malice in any written publication, petition, or

proceeding, addressed to such tribunal, will render

that publication, petition or proceeding libelous

in its character, and actionable, and will subject

the author and publisher thereof to all the conse-

quences of libel. And we think that in every case

. . . falsehood, and the absence of probable cause

will amount to proof of malice.”’ (Italies added.)

1. There Was Falsehood:

The testimony is clear that on or about January

14th, 1952, one of the respondents, acting within the

scope of his authority, and on behalf of the other re-

spondents (Tr. 2-3) arose at the sounding of the Court

Docket in the County Court of Adams County, Missis-

sippi, and giving as an excuse for wishing the case

passed to the next Term, said to that Court that he

wished the case passed as the Defendent, Jack C.

=

Vaughan, had ‘‘taken bankruptcy’”’ (Tr. 2-3, 24) there-

by ‘“‘falsely and maliciously imputing a desire on

plaintiff Vaughan’s part to ‘get out of’, or otherwise

avoid paying his legal and moral obligations’’. (Tr. 3.)

The slander was absolutely false because, *‘. . . at no

time in his life has Plaintiff Vaughan ever ‘taken

bankruptcy’ or sought to take bankruptcy”’ (Tr. 4).

2. There Was An Absence of Probable Cause:

It is, of course, within the power of courts of bank-

ruptcy of the federal judiciary to stay state court pro-

ceedings (U\S\CLA. Title 11, Chap. 3, Sec. 29.). But

procedure requires a motion, order, or formal notice

of some kind before any state court is required to

defer. ‘‘It is is no sense the duty of the (state) court

to grant a stay merely because it hears of the bank-

ruptev of a suitor’. The Collier Bankruptcy Manual,

1948, at page 162. Certainly it is not within the prov-

ince of courts to concern themselves with rumor; nor

lawyers be rumormongers. Therefore, unless the re-

spondents were in a position to tender proof of

petitioner’s having ‘‘taken bankruptcy’’, they were

completely without probable cause in making such an

assertion. And to clinch the matter, there is the letter

from respondents to petitioner of February 27, 1953,

admitting there were no grounds for probable cause

by denying that the statement had ever been made

(R. 29-30).

The judgment of the District Court should have

been reversed by the Court of Appeals, and summary

—]9—.

judgment entered for Petitioner against the Respon-

dents. Petitioner was entitled to the protection of his

claim by the provisions of Section 744, Mississippi

Code, 1942, Annotated. A State may not deny a citizen

of the United States of America equal protection under

its laws—Fourteenth Amendment to the Federal Con-

stitution—nor may a federal District Court sitting

in Mississippi; or a federal Court of Appeals. (Ninth

Amendment To The Federal Constitution). And their

failure to grant Petitioner his remedy against the

wrongs of Respondents, and to which remedy Peti-

tioner was entitled by virtue of the Statutes laid down

by Congress—the Federal Rules of Civil Procedure—

calls forth the exercise of this Court’s power of super-

vision to avert this gross miscarriage of justice.

Due process of law guarantees an orderly procedure

in Court for the ascertainment of damages for an

injury to the end that the person injured shall have

a proper and adequate remedy. The right to damages

for an injury is included within the Constitutional

guaranty. 12 Am. Jur.—Constitutional Law, Sec. 622.

Had the Petitioner’s Complaint’s allegation of malice

(R. 3) been denied by Respondents; the Petitioner

would have been entitled to have that fact passed on

by a jury (Wiute v. Nicholls, supra) ; demand for jury

trial having been made (R. 5—Rule 38, Federal Rules

of Civil Procedure—APPENDIX ‘“D’’); Bass v.

Hoagland, 172 F. 2nd 205. The Opinion of the Court

of Appeals was, in effect, a finding of fact that there

was no malice involved in the slanders; hence, the pro-

visions of White v. Nicholls were nullified.

ila

VII.

CONCLUSION

For the foregoing reasons, Petitioner, Jack C.

Vaughan, respectfully prays the Court to grant this

petition for a writ of certiorari to be directed to the

United States Court of Appeals for the Fifth Circuit,

and that after a hearing on the merits this Court will

enter judgment here for the relief prayed for in the

original Complaint filed by the Plaintiff, Petitioner

here, in the District Court below on the 12th June,

1953 (Tr. 1, 5). And for such other relief as is by this

Court deemed appropriate.

Respectfully submitted,

Jack C. Vaughan, Petitioner,

im propria persona

MAILING ADDRESS:

Post Office Box 1005,

Gardena, California

AFFIDAVIT OF SERVICE

STATE OF CALIFORNIA,

County of Los Angeles.—ss.

Before me the undersigned authority in and for the

State and County aforesaid, came and appeared Jack

C. Vaughan, who having first been duly sworn did

state on oath that he is the Petitioner in the above cause

and that he did serve a true copy of the above and

foregoing PETITION FOR WRIT OF CERTIOR-

ARI to the United States Court of Appeals for the

Fifth Circuit, upon GERARD H. BRANDON, the

attorney of record of the Respondents, BRANDON,

BRANDON, HORNSBY & HANDY and THE

TEXAS COMPANY, by mailing same, via Air Mail,

First Class, Postage Prepaid, in an envelope duly

addressed to him at his last stated address, which is

the address last known to Affiant, to-wit :—Post Office

Box 265, Natchez, Mississippi, and deposited in the

United States Mails at the Post Office at GARDENA,

CALIFORNIA. This thes?/. day ofa4ufy.., A.D.

1954. It is verily believed by Affiant that ‘this is in

‘compliance with the provisions of Paragraphs 1 and

3(c) of Rule 33 of the RULES of this Court.

s/ JACK C. VAUGHAN

Petitioner.

peepee rine * i SUBSCRIBED before me this

ves: ees day of ., 1954.

4 R. Ps ALBRIGHT

R. J. Albright, Notary Public.

My Commission Expires:

November 26, 1956

(SEAL)

APPENDIX

APPENDIX “I”

| §732. Other actions commenced in one year.—All

_ actions for assault and battery, maiming, false impris-

onment, malicious arrest, or menace, and all actions

- for slanderous words concerning the person or title,

and for libels, shall be commenced within one year

' next after the cause of such action accrued, and not

- after.

MISSISSIPPI CODE 1942, ANNOTATED,

Vol. 1, p. 800.

cer a

APPENDIX “II”

§744. New action after abatement, reversal.—If in

any action, duly commenced within the time allowed,

the writ shall be abated, or the action otherwise avoided

or defeated, by the death of any party thereto, or for

any matter of form, or if, after verdict for the plain-

tiff, the judgment shall be arrested, or if a judgment

for the plaintiff shall be reversed on appeal, the plain-

tiff may commence a new action for the same cause,

at any time within one year after the abatement or

other determination of the original suit, or after re-

versal of the judgment therein; and his executor or

administrator may, in case of his death, commence

such new action, within the said one year.

MISSISSIPPI CODE 1942, ANNOTATED,

Vol. 1, p. 811.

sls

APPENDIX “III”

§1604. County Court—jurisdiction—. . . The ju-

risdiction of said court shall be as follows: viz, It shall

have jurisdiction concurrent with the courts of jus-

tices of the peace in all matters, civil and criminal, of

which justices of the peace have jurisdiction; and it

shall have jurisdiction concurrent with the circuit and

chancery courts ir all matters of law and equity where-

in the amount of value of the thing in controversy

shall not exceed, exclusive of costs and interest, the

sum of three thousand dollars ($3,000.00). It shall

have exclusively the jurisdiction heretofore exercised

by justices of the peace in the following matters and

causes; Viz., eminent domain, the partition of personal

property, and actions of unlawful entry and detainer.

Provided, that action of eminent domain and unlawful

entry and detainer may be returnable and triable be-

fore the judge of the said court in vacation.

MISSISSIPPI CODE 1942, ANNOTATED,

1950 Cumulative Supplement, Vol. 2, p. 113.

sili

APPENDIX “A”

RULE 8. GENERAL RULES OF PLEADING

(c) Affirmative Defenses. In pleading to a pre-

ceding pleading, a party shall set forth affirmatively

accord and satisfaction, arbitration and award, as-

sumption of risk, contributory negligence, discharge

in bankruptcy, duress, estoppel, fuilure of considera-

tion, fraud, illegality, injury by fellow servant, laches,

statute of frauds, STATUTE OF LIMITATIONS

(emphasis), waiver, and any other matter constituting

an avoidance or affirmative defense .. .

(d) Effect Of Failure To Deny. Averments in a

pleading to which a responsive pleading is required,

other than those as to the amount of damage, are ad-

mitted when not denied in the responsive pleading . . .

U.S.C.A. Title 28, Federal Rules of Civil Pro-

cedure, Rules 1 to 16, page 253.

sain

APPENDIX “B”

RULE 7. PLEADINGS ALLOWED... .

(a) Pleadings. There shall be a complaint and an

answer; and there shall be a reply to a counterclaim

denominated as such; an answer to a cross-claim, if

the answer contains a cross-claim; a third party com-

plaint, if leave is given under Rule 14 to summon a

person who was not an original party; and there shall

be a third-party answer, if a third-party complaint is

served. No other pleadings shall be allowed, except

that the court may order a reply to an answer or a

third party answer. .. .

U.S.C.A. Title 28, Federal Rules of Cwil Pro-

cedure, Rules 1 to 16, page 245.

jolie

APPENDIX “C” .

RULE 12. DEFENSES AND OBJECTIONS —

WHEN AND HOW PRESENTED—

BY PLEADING OR MOTION—MO-

TION FOR JUDGMENT ON PLEAD-

INGS.

(b) How Presented. Every defense, in law or fact,

to a claim for relief in any pleading . . . shall be

asserted in the responsive pleading thereto (emphasis)

. except that the following (emphasis) defenses

may be made by motion: (1) lack of jurisdiction over

the subject matter, (2) lack of jurisdiction over the

person, (3) improper venue, (4) insufficiency of

process, (5) insufficiency of service of process, (6)

failure to state a claim upon which relief can be

granted, (7) failure to join an indispensible party. ...

U.S.C.A. Title 28, Federal Rules of Civil Pro-

cedure, Rules 1 to 16, page 335.

seiliion

APPENDIX “D”

RULE 38. JURY TRIAL OF RIGHT.

(a) Right preserved. The right of trial by jury as

declared by the Seventh Amendment to the Constitu-

tion or as given by a statute of the United States shall

be preserved to the parties inviolate.

(b) Demand. Any party may demand a trial by

jury of any issue triable of right by a jury by serving

upon the other parties a demand therefor in writing

at any time after the commencement of the action and

not later than 10 days after the service of the last

pleading directed to such issue. Such demand may be

indorsed upon a pleading of the party. . . .

U.S.C.A. Title 28, Federal Rules of Civil Pro-

cedure, Rules 17 to 51, page 352.

salle

APPENDIX “E”

RULE 56. SUMMARY JUDGMENT.

(a) For Claimant. (c) Motion and Proceedings

There. (e) Form of Affidavits; Further Testimony.

(a) A party seeking to recover upon a claim .. . may

at any time after the expiration of 20 days from the

commencement of the action or after service of a mo-

tion for summary judgment by the adverse party, move

with or without supporting affidavits for a summary

judgment in his favor upon all or any part thereof...

The judgment sought shall be rendered forthwith if

the pleadings, depositions, and admissions on file, to-

gether with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter

of law. . . Supporting and opposing affidavits shall

be made on personal knowledge, shall set forth such

facts as would be admissible in evidence, and shall

show affirmatively that the affiant is competent to

testify to the matters stated therein. Sworn or certi-

fied copies of all papers or parts thereof referred to

in an affidavit shall be attached thereto or served

therewith. The court may permit affidavits to be sup-

plemented or opposed by depositions or by further

affidavits.

U.S.C.A. Title 28 Federal Rules of Civil Pro-

cedure, Rules 52 to End, pages 153-154.