The enclosed letter from Judge Ewing is in reply to one I wrote in accordance with your suggestion. It speaks for itself, and certainly is in accord with the views of every lawyer who has any correct sense of justice and right.
I am glad to know that Mess. Streeter and Elder have canvassed this question and are fully alive to it, and that a motion has been filed raising the question. Woodbury and her attorney are continuing to try their caseEditorial Note: This is a reference to a libel suit against Mary Baker Eddy by Josephine Curtis Woodbury. The suit was filed on July 31, 1899 and concluded in Eddy's favor on June 5, 1901. in the newspapers, and in a conversation with Mr. Elder yesterday, he said that a number of lawyers had spoken to him about the gross impropriety of Peabody's action, and they are contemplating bringing his case before the Bar Association. This, of course, must be kept entirely quiet.
Mr. Elder's view is to take no notice of it in the newspapers, but give them rope, and then later on bring the whole proceeding to the attention of the court. W. and her attorney are rapidly uncovering themselves and disgusting more and more decent and thinking people. The more they disgust public opinion, and especially the legal fraternity and courts, the better for us.
Peabody, through the newspapers, is endeavoring to make it appear that the demurrer was overruled by the court and only the motion to expunge sustained. Mr. Elder says this is entirely false, and while the judges decision was informal it was a substantial sustaining of both the demurrer and the motion to expunge. He rendered, as I have said, an informal opinion, and As Written: aud therefore it is impossible to obtain a copy of it, but the New Hampshire judge has been sent a newspaper containing the correct version of it. This we think is all that is necessary. We must avoid, as far as possible, pursuing the tactics of the other side, and As Written: aud let our work be done mentally.
We are receiving from the branch churches resolutions similar to those received from the London and Washington churches. Shall we publish them as they come in, or wait and make up a symposium of them for the SENTINELEditorial Note: Christian Science Sentinel?
P. S. I have thought it well to reply to some of Sabin's recent falsehoods, and point out his inconsistencies, because it seems that he is deceiving and misleading a few well-meaning persons over the FieldEditorial Note: The field of Christian Science.. I could not do this without bringing you into it to some extent, and hence submit it to you for your approval As Written: approva , disapproval or change.
My dear Judge: -
I just reached home this morning from a trip in Iowa and Missouri, and am compelled to go away again tomorrowAs Written:to-morrow.
In reply to your letter of recent dateEditorial Note: This letter is not extant. I beg to say that I received, two or three days ago, while in Iowa, a telegram from my wife, repeating to me an inquiryEditorial Note: See L13653 and L13644. from Mr. Frye respecting the suits now pending in Massachusetts and New Hampshire, respectively, and asking whether they could both be prosecuted at the same time. I answered this inquiry to Mr. Frye by wire as nearly as I can recollect as follows:
"It depends somewhat upon the law in Massachusetts, but I think the Court in New Hampshire will stay the proceedings there until the case is tried or dismissed in Massachusetts."
Of course you and I, as lawyers, know that in all these questions of practise the local law is the criterion, and I am sure the opinion of the lawyers in Massachusetts and New Hampshire will be much more satisfactory and reliable than any I may express. It occurs to me, however, as such a plain proposition of common justice that no one should be expected to defend at the same time two suits brought upon the same alleged cause of action, against the same defendant, in different states, that I am quite, if not wholly, persuaded that the Court in either state must, in this instance, require the plaintiff to elect in which state she will prosecute the case. The manner of reaching the question is, of course, a matter of local practise, but I should think, in either Court, the question might be presented by motion. For instance, in Massachusetts, by presenting a motion to the Court embodying a certified copy of the declaration in New Hampshire, it would clearly appear that the plaintiff and defendant in each action are the same, and that the alleged cause of action is precisely the same, and upon this showing it occurs to me that the Court, under penalty of dismissal, would require the plaintiff to submit to a say of proceedings in the other Court.
Merely vexatious litigation will never be permitted, and that this litigation is simply vexatious, and with no reasonable hope of recovery, is foreshadowed by the declaration itself, and demonstrated, I think, by commencing at the same time identically the same action in another state. It is apparent that if the plaintiff is permitted to maintain these two actions in different states at the same time, on principle she could not be debarred from like proceedings at one and the same time in all the states where she could secure service on the defendant; and yet this would be such a palpable abuse of the plainest principles of right that no Court would, for an instant, permit itself to be used in such a malicious endeavor, and therefore cannot permit itself to be used in the initial of a palpable wrong.
As I understand, Mrs Eddy's appearance was entered in the Massachusetts Court, upon the explicit agreement that the case should be tried in Massachusetts, and Massachusetts only. If this is true, and the facts were presented to the Court, I am of the opinion that the Court would require the plaintiff to dismiss the suit in the New Hampshire Court, or abandon her case in the Massachusetts Court. I have read the declaration very carefully and cannot escape the conclusion that when all that is superfluous and impertinent in the declaration is eliminated, every semblance of a cause of action will disappear; and as I understand the provable facts in the case, I am unable to see, as I have already written the Mother, how a declaration can be framed upon which a recovery can possibly be had. In reality, the plaintiff's case is as barren of legal merit as she seems to be of moral perception. I hope you will advise me at the earliest moment of the action of the Court upon the demurrer.
I have just reached home from a tourEditorial Note: Ewing was serving on the Christian Science Board of Lectureship. of two weeks in Iowa, in which I lectured every evening except Wednesdays and start tomorrow As Written: tomoroow on a trip in Michigan, Minnesota, Iowa, Nebraska, Kansas, Missouri, and two or three places in Southern Illinois, lasting until the 7th of December, in which I have appointments for every day of the whole time except Wednesdays. I have had, during the past two weeks, large audiences at all my meetings. At both Kansas City and Des MoinesEditorial Note: Des Moines, Iowa several hundred people were unable to gain admission to the meetings.
Mrs. Ewing is just finishing a class of which your nephew Mr Mueller is a member. I had a very pleasant talk with him this evening. He is a very fine specimen of a rugged, forceful, lovable man,
I will never forget my trip to Boston. It was a liberal education, and you were all, at the publishing house, so kind and helpful to me, that I cannot, in words, express my gratitude to you.
If you see or communicate with the Mother, please tell her, as in words I cannot, my love for her, and my sense of gratitude, sometimesAs Written:some times almost overwhelming; and I am sure I but express the truth when I say that everywhere I go, among her students, and students' students my own thought of her is common to them all.
Affectionately your friend,
W. G. Ewing
Hon. S. J. Hanna,
385 Commonwealth Avenue,
Boston, Mass.
October 28, 1899.
P.S.- I will be greatly obliged if you will give to the Mother, or Mr. Frye, what I have said respecting the trials. I think it would perhaps be more satisfactory than the telegram I sent to Mr. FryeEditorial Note: This telegram is not extant..