Action to recover damages in the sum of $20,000 for libel. Plaintiff ■was given a verdict for one dollar. The defendant appealed from an •order denying its motion for a new trial.
There is no dispute as to the facts, which are as follows: The defendant is engaged in the publication of a newspaper known as the '“St. Paul Dispatch.” On October 5, 1905, it published the article complained of, which was libelous on its face, in its newspaper. The article was taken from a complaint then on file in a divorce action commenced by the plaintiff’s husband against her in the district court of the county of Ramsey. ■ Extracts from the complaint so on file were published by the "defendant, without actual or express malice or ill-will toward the plaintiff; and, further, it has been the custom for many years of newspapers in the city of St. Paul to publish extracts from •or comments on'complaints when filed in the district court prior to the trial of such actions, and such pleadings have been considered by the newspapers as privileged. The sole question for our decision is ■whether the facts stated show that the publication was privileged.
' The fact that managers of newspapers have been accustomed to publish, when filed, the pleadings in civil actions, and to consider such publications as privileged, is immaterial, for neither custom nor opinion can withdraw person, character, or property from the protection of-the' •constitution. The law is well settled that a publication of judicial proceedings, if fair and .impartial, is privileged. If the complaint which was published in this case was a judicial proceeding, within 'the meaning of the rule stated, it was privileged; otherwise it was not. ' ■ '
It is the contention of the defendant that the complaint published by. it was a part of -the judicial proceedings in the action in which-it was filed, and privileged "by virtue" of R. E. 1905, ■§ 4920, which reads as." ■follows :
No prosecution for libel shall be maintained against a’reporter, editor, publisher or proprietor of a newspaper for the publica*312tion therein of a fair and true report of any judicial, legislative or other public and official proceeding, or of any statement,, speech, argument or debate in the course of the same, without proving actual malice in making the report. But the foregoing shall not apply to a libel contained in the heading of the report,, or in any matter added by another person concerned in the publication, or in the report of anything said or done at the time- and place of the public and official proceeding, which was not a part thereof.
This section' is a part of the penal code of the state, and does not attempt'to define what is a judicial proceeding as the term is used therein and in the rule applicable to civil cases, that a publication of judicial proceedings, if fair and impartial, is privileged.
It is true, as claimed by counsel for defendant, that a complaint, when filed in the office of the clerk of the court, becomes a part of the records-in the action and that by virtue of the statute (R. L. 1905, § 614) the clerk must exhibit the records in his office for the inspection of any person demanding the same free of charge, except in cases where fees-are provided by law, and then upon tender of such fees. This right, however, does not authorize the person inspecting the record to make an improper use thereof, or to publish to the world through the medium of the press libelous matter contained in the record. Complaints in. civil actions are filed by the plaintiff. The court does not pass upon the question whether or not they shall be filed. Nor has the clerk of the court any right to refuse to file a complaint, when requested by the-plaintiff, although it may contain libelous matter. Now, if the filing-of such a complaint must be construed as a judicial proceeding within, the rule stated, then any one who happens to read the complaint after it is filed is privileged to publish it, and send it into the houses and offices of thousands of the citizens of the state, and thereby brand the-person against whom the complaint is filed with infamy. If such be-the law, then an easy and safe way has been provided whereby a party desiring to libel another may do so with impunity by entitling the libel in an action, labeling it a complaint, and filing it with the clerk. The constitutional guaranty to the citizen of a certain remedy for all wrongs. *313which he may receive in his person, property, or character cannot be evaded by any such makeshift.
The distinction between a complaint and judicial proceedings proper is clear. The first is ex parte, not subject to the control of the court in the first instance, the clerk must file it, and its publication can in no-manner serve the administration of justice, or any other legitimate object of public interest. The last are had in court, under the control of the judge, where both sides may be heard. A fair report of such a proceeding would include the claims of all parties as made in court. It is the publication of such a report only that is privileged.
W'e hold, upon principle and authority, that a publication of judicial' proceedings, if fair and impartial, is privileged; but a complaint or other pleading in a civil action, which has never been presented to the court for its action, is not a judicial proceeding within the rule, and its publication, if it contains libelous matter, can only be justified by showing that it is true. 1 Jaggard, Torts, 532; Newell, S. & L. 471; Park v. Free Press Co., 72 Mich. 560, 40 N. W. 731, 1 L. R. A. 599, 16 Am. St. 544; Cincinnati v. Timberlake, 10 Oh. St. 549, 78 Am. Dec. 285; Cowley v. Pulsifer, 137 Mass. 392, 50 Am. 318; Barber v. St. Louis,. 3 Mo. App. 377. It follows that the publication in this .case was not privileged.
Order affirmed.
JAGGARD, J., dissents.