delivered the opinion of the court.
This is a -writ of error to review a judgment affirming a judgment of the Supreme Court of the District in favor of the defendants in an action for libel and conspiracy.
The declaration contains two counts, the first of which . avers that the plaintiff was a teacher and a member of the body of teachers in the public schools of the District of Columbia, and that the defendants,"' without 'probable cause, but contriving and maliciously intending to injure plaintiff in her character and reputation as a school teacher, wrongfully and maliciously composed and published and filed in the Clerk’s office of the Supreme Court .of the District, as their .answer in a legal. proceeding wherein they and others composing the Board of Educa- ■ tion were named as defendants, a certain false, scandalous and defamatory libel concerning the plaintiff in respect of her profession, the purport óf which was(that the' defendants and others, composing the Board of Education, found upon examination that the plaintiff “was not sufficiently qualified in all respects to continue to teach” in the public schools, but was “deficient in the necessary academic and pedagogic1 Equipment of a competent teacher,” so that the Boárd of Education'were unable lawfully to continue her in employment.
The second count recites tha,t the plaintiff was and for . more than thirty years had been earning her livelihood ■ as.a teacher and member of the body of teachers of the public schools 'of the District of Columbia, and the defendants and /others constituted the Board of Education,
To the first count, ■ defendants interposed a demurrer, upon the ground - that the alleged libelous matter was privileged. The demurrer was sustained.
To the second count, defendants filed two pleas. Of these, the first sets up the' proceedings and judgment in the Supreme Court in the case of The United States of America ex rel. Mary E. Nalle, Relator, v. George W. Baird and others, Respondents, 1 on plaintiff’s petition for a writ of mandamus to restore her to the rolls as a teacher (being the same proceeding in which the alleged libelous matter was filed as the answer of the Board of Education), and avers that afterwards, by the consideration and judgment of the court, and upon an issue necessarily involved in the cause and litigated therein between the parties, and identical with the causes of action herein given, it was ' ordered that the writ of mandamus be and it was thereupon denied, as by the record appears, a copy of which is attached to the plea 'and made a part of it.
The second plea to the second count sets up the former adjudication in a different form, averring the facts more elaborately and including a special reference to the alleged libelous matter under circumstances such as to lay the foundation for a claim that it was privileged. This plea avers that at the time., alleged in the second count of the declaration, and for a long time before, the defendants constituted the Board of Education of the District, in
To both pleas, the plaintiff demurred. Her demurrers were overruled, and as she elected to stand upon them, final judgment was entered against her.
The Court of Appeals of the District affirmed the judgment (36 App. D. C. 36), and the present writ of error was sued out.
The questions argued are: whether the first count of the declaration was properly sustained against the. demurrer
The Court of Appeals declined to go into the question of privilege, ignoring the first.count because no exception was taken by plaintiff to the ruling of the court sustaining the demurrer thereto; and ignoring the question of privileged communication raised by the second plea to the second count because the judgment against the plaintiff on that count could be sustained on the plea of former adjudication.
Respecting the-necessity for an exception to the court’s ruling in sustaining the demurrer to the first count, counsel for defendants in error have not attempted to uphold the position taken by the Court of Appeals. The court cited no statute, rule or other authority for its position, and we have been unable to find any.
The practice of bills of exceptions is' statutory. By the ancient common law, a writ of error lay only for an error in law apparent upon the judgment roll — what is now called the “strict record ” — or for an error in fact, such as the death of a party before judgment, (See
Green
v.
Watkins,
Except as modified by statiite, the practice of the courts of the District of Columbia is modeled upon that which obtained in the courts of Maryland at the time of the cession. Act of February 27, 1801, § L, 2 Stat. 103, c. 15. By act of March 2, 1889, 25 Stat.’ 872, c. ’392, Congress provided for the making and publication of a compilation of the-laws then in force in the District, to be made by commissioners appointed by the Supreme Court of the District. The result was the Abert & Lovejoy Compilation, and in it (p. 442, § 5) the statute of Westminster 2 (13 Edw. I, ch. 31, § 1) is included. Under the settled practice in Maryland (as elsewhere) under that statute, a bill of exceptions is unnecessary and inappropriate for bringing under review a ruling of- the court upon a demurrer to the pleadings, since the pleadings form a part of the record and show upon their face the facts upon which the question of law is raised. ’
Blake
v.
Pilcher
(1877),
By the “Act to establish a code of law for the District of Columbia,” approved March 3, 1901, 31 Stat. 1189, c. 854, Congress enacted that the common law, and- all British statutes in force in Maryland on the twenty-seventh day of February, eighteen hundred and one, should remain in force, except so far as inconsistent with or replaced by, some provision of the Code. We find nothing in the Code, .or in the rules of practice established under' it, to require an exception in order that an error apparent upon the record may be reviewed. Sections 71 and 73 pertain to the taking of exceptions to rulings made during trial in the Supreme Court. There seems to be no section that in terms recognizes a right to take exceptions on rulings other than such as are made in the course of the trial, unless this right follows from the adoption of the Statute of Westminster as being among the “British statutes in force in Maryland,” etc.
Sec. 65 of the Code authorizes the Supreme Court of the District to establish rules of practice for the trial terms, not inconsistent with the laws of the United States. Sec. 225 authorizes the Court of Appeals to “make such rules, and regulations as-may be necessary and proper for the transaction of its business and the taking of appeals to said court”; with the “power to prescribe what part or parts of the proceedings in the court below shall constitute the . record on appeal except as herein ■ otherwise provided, and the forms of bills of exceptions, and to require that the original papers be sent to it instead of copies thereof, and generally to regulate all matters relating to appeals, whether in the court below or in said Court of Appeals.”
We are referred to nothing, and have found nothing in the rules of either of the courts, to require an exception
Sec. 1533 of the District Code provides that in all cases where a demurrer to a declaration or other pleading shall be
overruled,
the party demurring shall have the right to plead over, without waiving his demurrer. This is obviously designed to modify the former rule that where after demurrer overruled, leave was given to plead, and the demurring party pleaded to the pleading demurred to, he waived the demurrer, and took it out of the record, so that it did not appear in the judgment roll.
Young
v.
Martin, 8
Wall. 354, 357;
Stanton
v.
Embry,
We must therefore consider the merits of the question raised by defendant’s demurrer to the first count.
Counsel for plaintiff in error rest upon the authority of the decision of this court in
White
v.
Nicholls,
The defendants, having demurred to the count in question, necessarily admit' the truth of the facts stated in-it, so far as they are well pleaded. Among the facts so pleaded are malice, falsehood and the want of probable cause; and the averment of these facts is not negatived or qualified by anything else that appears in the count. The count does not even show that the alleged libelous matter was pertinent or material to the issue, for it does not show the nature of the proceeding, nor what was the issue, nor that the plaintiff was a party to it.
It' is unnecessary to say that the issue joined upon the demurrer to the first count is legally distinct and.separate from the issue joined upon the demurrers..to the pleas to the other count. Nothing in th§ second count or in the subsequent pleadings can be imported into the first coum>. And so, while wé 'may sutmise that the legal proceeding referred to in the first count is the same as that elsewhere referred to in 'the pleadings, we cannot base upon this surmise a judgment upon the demurrer. .So far as appears from the count itself, the plaintiff may have been a stranger to the proceeding in which the alleged libelous answer was' filed. Moreover, there is nothing to rebut the averment of falsehood and the absence of probable cause. And since it cannot be doubted that the matter is libelous unless protected by the privilege, it follows that the court erred in sustaining the demurrer.
The questions raised by the other demurrers need not long detain us. The established rule is that if the parties
The matter alleged to be libelous, was the statement made by respondents in their answer to the mandamus proceeding that they had found on examination that the ’plaintiff was “not sufficiently qualified in all respects to be competent to continue to‘teach, but was deficient in the necessary academic and pedagogic equipment of a competent teacher,” so that the respondents were unable lawfully to continue employing her.
Counsel for plaintiff in error point out that while upon the decision of a demurrer in the mandamus case, the Supreme Court (by Mr. Justice Anderson) held that this was a good justification, it was afterwards traversed in fact, and it is contended that the issue thereon was determined without passing upon the precise question of plaintiff’s “academic and pedagogic equipment.” As evidence of this, the proceedings in, the mandamus case are referred to. It appears that in giving the reason for entering final judgment in favor of the Board of Education, Justice Anderson said: “It was not necessary that the Board should find that she was lacking in the academic and pedagogic equipment of a competent teacher, if they found generally that she was not qualified to teach in the public schools.” The argument now seems to be that the “necessary academic and pedagogic equipment ” is not synonymous with the “sufficient qualifications” of a teaeher. This, we think, is a distinction without a difference, and the Court of Appeals correctly held that both pleas to the second count were good as setting up a former adjudication of the identical matters included in the second count of the declaration.
However, it is not out of place to say that -it cannot be doubted that the second count of the declaration, taken in connection' with the second plea thereto, shows a situation that clearly renders the subject-matter of the alleged libelous answer to have been privileged.
These pleadings show that upon the plaintiff’s own application for a mandamus the defendants, being the Board of Education, were required to show why they had dismissed her. They showed it, by averring that upon examination they had ascertained her to be lacking in the qualifications of a teacher and had dismissed her accordingly.
The insistence is that even such a defense, if made with malice a.nd without probable cause, may be the subject of an action of libel. The rule laid down in
White
v.
Nicholls,
It is further insisted that the second count of the declaration is not, properly speaking, a count in libel, but is a count in trespass on the case for a conspiracy. But the well-settled rule is that no civil action lies for a conspiracy unless there be an overt act that results in damage to the plaintiff. To this effect are the very an
Now in the second count of the declaration no overt act is charged except the filing of the alleged libelous matter as a part of the defendants’ answer in the mandamus action. The only damage alleged to have been suffered is that which proceeded from the publication of this libel. And since, as the record shows, the alleged libel was an essential part of a pleading filed in a former proceeding between the parties herein, which by.the judgment was determined to be true, and since therefore, the alleged libel was privileged, and thus not actionable, it follows plainly enough that a conspiracy to publish it is not actionable.
It results that so far as the judgment of the Court of Appeals affirmed the judgment of the .Supreme Court in overruling the plaintiff’s demurrers to the first and second pleas filed by the defendants to the second count of the. declaration, the judgment should be affirmed.. But so far as the judgment sustained the defendants’ demurrer to the first count of the declaration it should be reversed, and the cause, remanded for further proceedings in accordance with this opinion. Under the circumstances, however, the defendants should have leave, to plead to the first, count., by traverse or otherwise. D. C. Code, § 1533;
United States
v.
Boyd,
Judgment reversed and cause remanded for further proceedings accordingly.
Notes
See United States ex rel. Nalle v. Hoover, 31 App. D. C. 311.