ant; and notwithstanding the failure of the ministerial duty of the clerk to transcribe it into the minute-book of the court and to render the judgment as ordered, and notwithstanding the judge of the court was re-elected between the time of trial and the time of completion of the record, a valid order may be made after his re-election that the clerk enter judgment in favor of the defendant nunc pro tunc as of the date of the rendition of the judgment.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a motion to vacate and set aside a judgment, and to strike findings from the files of the court.

The facts are stated in the opinion.

Wal. J. Tuska, and Beverly L. Hodghead, for Appellant. H. A. Powell, and W. A. Dow, for Respondent.

BELCHER, C.-This is an action for divorce upon the ground of extreme cruelty.

The answer denies, among other things, that the parties to the action ever intermarried, or that they ever were or are husband and wife.

The cause came on regularly for trial on November 11, 1891, and a jury was impaneled to try the same. Witnesses were examined on both sides, and, after argument by counsel, the case was submitted to the jury on November 12th upon the following special issues: "1 Were the parties to this action married to each other? 2. If you say that the parties were married, has the defendant treated the plaintiff with extreme cruelty?"

The jury rendered the following verdict: "Were the parties to this action married to each other? A. No."

"Thereupon, on the said 12th day of November, 1891, in open court, the court orally gave and pronounced judgment in favor of the said defendant, that this action be dismissed."

This order was entered by the clerk in the rough minutes of the court's proceedings on November 12th, but was not transcribed by him into the engrossed minute-book of that day. No written findings were

filed, and no judgment was entered in pursuance of this order. In October, 1893, the plaintiff moved the court that the cause be set down for trial. The motion came on regularly to be heard, and in support thereof the plaintiff read the pleadings in the action and the minutes of the court as to the trial. The court thereupon denied the motion and directed the clerk of the court to enter judgment in favor of the defendant nunc pro tunc as of November 12, 1891. A paper was then, on October 30, 1893, signed by the judge, and filed, setting out the facts, and that "the court approves and adopts the said verdict, and as a conclusion of law the said defendant is entitled to judgment for his costs, and the court hereby orders judgment to be entered accordingly as of the 12th day of November, 1891."

Judgment was accordingly so entered, and from it the plaintiff appeals.

In November, 1893, the plaintiff moved the court to vacate and set aside the judgment, findings, and decision filed October 30, 1893, upon the grounds: 1. That the trial of the cause had not been completed at the time said judgment was entered; 2. That at the time the said judgment was entered, and the said findings made and filed, the term of office of the judge who tried the cause had expired, and his judicial powers relative to the trial thereof during his preceding term had ceased.

After a hearing the court denied the motion, and from that order the plaintiff also appeals.

It appears that the judge before whom the case was tried, and before whom all of the proceedings under review were had, Hon. W. T. Wallace, was re-elected to the office of superior judge in 1892, and his new term of office commenced on the first Monday of January, 1893. And it is contended that the case had not been fully tried when the new term commenced, since no written findings approving and adopting the verdict of the jury had then been filed, and that thereafter the judge had no power to make findings or take any steps to complete the trial. In support of this position counsel

cite Connolly v. Ashworth, 98 Cal. 205, and Broder v. Conklin, 98 Cal. 360.

The verdict of the jury to the effect that the parties to the action were not husband and wife, if approved and adopted by the court, was decisive of the action, and necessitated a judgment in favor of the defendant. No further findings were required. It is true the action was an equitable one, and the verdict was only advisory, but it appears to have been regularly returned and entered in the minutes of the court; and thereupon the court orally ordered judgment to be entered thereon. This order necessarily included an approval and adoption of the verdict, and constituted a rendition of judgment in favor of the defendant. And, when the order was made, it became the duty of the clerk to transcribe it into the minute-book of the court, and to enter the judgment as ordered. The failure of the clerk to do so was a failure to perform a ministerial duty which could afterward be performed at his own instance, or by direction of the court at any time. (In re Cook, 77 Cal. 220; 11 Am. St. Rep. 267; Baker v. Brickell, 102 Cal. 620.)

It follows that, notwithstanding the judge of the court below was re-elected between the time of the trial and the completion of the record thereof, the proceedings complained of were authorized and proper.

The Connolly and Broder cases, cited by appellant, are not in point. In each of those cases it was held that findings prepared and signed by the judge, but not filed until after his term of office had expired, could not be the basis of a valid judgment, because the "trial of a cause by the court is not concluded until the decision is filed with the clerk; and, when the term of office of the judge who tried the case expires before such decision is filed, the fact that it was signed by him and ordered by his successor in office to be filed with the clerk, and was so filed, is not sufficient to sustain the judgment entered thereon."

This is undoubtedly sound law, but it is not applicable to the facts of this case.

The judgment and order appealed from should be affirmed.

SEARLS, C., and HAYNES, C., concurred.

For the reasons given in the foregoing opinion the judg ment and order appealed from are affirmed.

MCFARLAND, J., TEMPLE, J., HENSHAW, J.

[No. 15677. Department Two.-May 23, 1895.]

JOSEPH W. TAYLOR, APPELLANT, v. W. R. HEARST, RESPONDENT.

LIBEL-DEFINITION.-Libel is a false and unprivileged publication which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his business.

ID. LIABILITY OF NEWSPAPER PROPRIETOR-KNOWLEDGE OF PUBLICATION. The proprietor of a newspaper in which a libel is published, though he had no knowledge of the publication at the time, is as responsible for it as he would have been if it had been done by him personally, or under his direct supervision.

ID.-MALICE.-To constitute libel there must be malice actual or implied, on the part of the publisher, the malice being actual when the publication is made through motives of ill-will and with intent to injure or defame; and is implied or presumed in law when the article published is libelous per se.

ID. EXEMPLARY DAMAGES-MITIGATING

CIRCUMSTANCES-ACTUAL DAMAGES.-Where the defendant has been guilty of malice, actual or presumed, the jury may give exemplary damages; but the defendant may prove any mitigating circumstances to reduce the amount of the damage, and may prove that there was no malice in fact to prevent exemplary damages; but such proof is not sufficient to defeat the action or to prevent the plaintiff from recovering such damages as he has actually sustained by reason of the publication.

ID. MISTAKE IN NAME OF PERSON LIBELED-ACTUAL DAMAGES.Where a published article is libelous per se, the fact that it was made to apply to the plaintiff by mistake in his initials, and was intended to apply to another person, does not justify or excuse the publication, and whether such publication was by design, or was the result of carelessness in setting the type, is a matter of no consequence so far as the question of actual damages is involved.

2.

ID. CORRECTION OR RETRACTION-PLEADING

EVIDENCE-MITIGATION

OF DAMAGES.-A correction or retraction of the mistake or error may be properly pleaded and given in evidence, but can operate only in mitigation of damages, and not as a full defense to the action. ID.-EXEMPLARY DAMAGES-QUESTION OF FACT-ABSENCE OF ILLWILL-INSTRUCTION TO JURY.-The question whether there was such malice on the part of the defendant as would entitle the defendant to recover exemplary or punitive damages is ordinarily one of fact for the jury; but where it is clearly established that the publication was not made by reason of any ill-will against plaintiff, or with any intention to injure or defame him, the plaintiff is not entitled to exemplary or punitive damages, and the court may so instruct the jury. ID.-NOMINAL DAMAGES-INJURY TO FEELINGS-PLEADING.-In considering the amount of actual damage the jury must consider the injury to the plaintiff's feelings, and it is not necessary that damages resulting from such injury be specially alleged, or that proof of such injury be specially given.

ID. QUESTION OF DAMAGES FOR INJURY-NOMINAL DAMAGESMAXIM.-In an action for libel the question of damages is for the jury; and the court cannot assume as matter of law that plaintiff is entitled to only nominal damages; nor can a verdict for the defendant be allowed to stand, under the maxim de minimis non curat lex, upon a claim that the plaintiff was entitled at most to only nominal damages.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial.

The facts are stated in the opinion.

J. C. Bates, for Appellant.

The publication was libelous per se, and, as matter of law, malicious. (Civ. Code, sec. 45; Lick v. Owen, 47 Cal. 252, 258; Wilson v. Fitch, 41 Cal. 363; Mowry v. Raabe, 89 Cal. 609; Avery v. Ward, 150 Mass. 161; Lombard v. Lennox, 155 Mass. 70; 31 Am. St. Rep. 528; Harris v. Zanone, 93 Cal. 59; Morey v. Morning Journal Assn., 123 N. Y. 210; 20 Am. St. Rep. 730, and cases cited.) Mitigating circumstances and justification should be pleaded as such. (Code Civ. Proc., sec. 361; Townshend on Libel and Slander, secs. 212, 361, 413; Lick v. Owen, supra; Wilson v. Fitch, supra; Preston v. Frey, 91 Cal. 110; Spooner v. Keeler, 51 N. Y. 538; Upton v. Hume, 24 Or. 420; 41 Am. St. Rep. 863.) The court erred in charging the jury that either merely

nominal, or only