2. JUDGMENT ☺—273(1) — ENTRIES NUNC PRO | 12. LIBEL AND SLANDER ←21—ACTIONABLE TUNC. WORDS-CHARACTER.

The object and purpose of a nunc pro tunc order is to make the record speak the truth concerning acts already done, and not to supply an omitted action.

In action for libel there can be no recovery unless the actionable words or assertions referred to the plaintiff at least with reasonable certainty.

3. LIBEL AND SLANDER 19-WORDS LIBEL- 13. LIBEL AND SLANDER 12-PLEADINGOUS PER SE-HOW DETERMINED. SPECIAL DAMAGES.

Any false and malicious writing published of another is "libelous per se" when its tendency is to render the party contemptible or ridiculous in public estimation or expose him to public hatred or contempt.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Actionable Per Se.]

7. LIBEL AND SLANDER FUNCTION.

86(1)-INNUEndo

Language or terms, which are not libelous per se, when viewed in the light of their general acceptation and understanding in the community or vicinity in which they are used, cannot be made so through the function or force of an innuendo.

8. LIBEL AND SLANDER 86 (1)—INNUENDO -FUNCTION.

The innuendo will not introduce new matter, nor will it be permitted to aid to the extent of enlarging the meaning of the words or expressions used.

9. LIBEL AND SLANDER ~6(1) "LIBELOUS PER SE"-"LIBELOUS PER QUOD."

In action for libel by words not actionable per se, special damages must be alleged and proved. 14. LIBEL AND SLANDER 89(2)-PLEADINGSPECIAL DAMAGES.

In action for damages by words not actionable per se, the allegation that "by means of said false, libelous and defamatory publication or publications the plaintiff herein was injured in his reputation and good name and standing to his damage in the sum of $50,000," is insufficient as an allegation of special damages.

Appeal from District Court, Washoe County; Mark R. Averill, Judge.

Action by G. F. Talbot against C. E. Mack. Judgment for defendant, and plaintiff appeals. Affirmed.

G. F. Talbot, of Carson City, and Sardis Summerfield, Miller & Mashburn, and Robert Richards, all of Reno, for appellant. Mack & Green, Thomas E. Kepner, and A. F. Lasher, all of Reno, for respondent.

MCCARRAN, C. J. This was an action in tort instituted by appellant, as plaintiff, against respondent for damages claimed to have been sustained by appellant by reason of libel. The demurrer to appellant's complaint being sustained, and appellant having declined to amend, judgment was entered against him in favor of respondent. From the judgment thus entered and from the order of the trial court in sustaining the demurrer, appeal is taken to this court.

a

We are first concerned with the matter of motion to dismiss the appeal upon the ground that no assignment of errors was served or filed in this court within the time prescribed by law. In this respect respondent relies on section 13 of an act entitled "An act supplemental to and to amend an act entitled 'An act to regulate proceedings in civil cases in this state and to repeal all acts in relation thereto,' approved March 17, 1911," approved March 16, 1915, and found in Session Acts of 1915 at page 164. The section reads as follows:

Words or expressions are "actionable per se" when their injurious character is a fact of common notoriety and generally so understood where the utterance is published, and words or expressions "libelous per quod" are such as require that their injurious character or effect be estab-been taken from any order or judgment, the parlished by allegation and proof. 10. LIBEL AND SLANDER 86(1)-INNUENDO -FUNCTION.

In action for libel, if the words or expressions complained of are ambiguous or equivocal, the innuendo may assign the true meaning the plaintiff believes them to bear; but if the words alone, or the words limited by circumstances duly pleaded, are not defamatory, the innuendo cannot make them so.

11. LIBEL AND SLANDER ~9(1) "LIBELOUS PER SE."

WORDS

While words which directly tend to the prejudice of any one in his office, profession, trade, or business are actionable per se, all words disparaging persons in such matters are not, without proof of damage, actionable in themselves.

"Within twenty days after any appeal has

ty or parties appealing shall serve the adverse parties and file with the clerk of the Supreme shall designate generally each separate error, Court an assignment of errors, which assignment specifying the page and lines of the record wherein the same may be found. Any error not assigned shall not be considered by the Supreme Court. If the party fails to file such assignment within the time limited no error shall be considered by the Supreme Court. The assignment of errors herein provided for shall be typewritten, paged, and the lines numbered, and the appellant shall furnish three copies thereof for filing in the Supreme Court."

The record as it is before us discloses a total failure on the part of appellant to

serve or file any assignment of errors, and appellant seeks by separate motion in this court to have an order made permitting him to file his assignment of errors nunc pro tunc. With the last-mentioned motion it will, in our judgment, be unnecessary for us to deal, in view of the position that we shall here take and which we deem proper under the statute.

ruling appellant's motion for a new trial. Here the appeal is from an order sustaining a demurrer. In the Coffin Case the errors, if any, were not contended for as pertaining to matters properly appearing in the judgment roll. In the matter at bar the very error contended for, and indeed the only error contended for, is the order of the trial court sustaining the demurrer and pursuant to section

Section 11 of the act of 1915, referred to, 5273, Rev. L., is properly embraced within Is as follows:

and is on the face of the judgment roll. Not "The original bills of exceptions herein provid- only that, but the section of the Code last reed for, together with a notice of appeal and the ferred to provides that "all bills of exceptions undertaking on appeal, shall be annexed to a copy of the judgment roll, certified by the clerk taken and filed" shall be a part of the judgor by the parties, if the appeal be from the judgment roll; and in the judgment roll as it is ment; if the appeal be from an order, such original bill shall be annexed to such order, and the same shall be and become the record on appeal when filed in the Supreme Court. A party may appeal upon the judgment roll alone, in which case only such errors can be considered as appear upon the face of the judgment roll."

As to what constitutes the judgment roll, our Civil Practice Act, section 5273, Rev. L. (section 331, Civil Practice Act), provides:

"Immediately after entering the judgment, the clerk must attach together and file the following papers, which constitute the judgment roll: (1) In case the complaint is not answered by any defendant, the summons, with the affidavit or proof of service; the complaint with memorandum indorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment. 寧 (2) In all other cases, the pleadings, a copy of the verdict of the jury, or finding of the court or referee, all bills of exceptions taken and filed, and a copy of any order made on demurrer or relating to the change of parties, and a copy of the judgment. * *

before us we find the bill of exceptions taken to the order sustaining the demurrer and the same duly allowed by the trial judge and filed on the date of the entry of judgment.

If the matters or proceedings which appellant sought to have reviewed by this court on appeal were not properly embraced within the judgment roll, then the motion to dismiss should prevail under the doctrine of the Coffin Case, supra. The case at bar falls directly within the provision of section 11 of the Practice Act of 1915, providing for the consideration of errors which appear upon the face of the judgment roll when appeal is from the judgment alone. Under this provision of the statute it is manifest that the intendment of the lawmakers was to require no assignment of errors in a case such as this, where the order appealed from and the error complained of were all embraced within matters properly belonging to the judgment roll and were brought to this court in that form. Indeed, if it were otherwise it would at most only require a repetition, by way of assignment of error, of that which was already excepted to and assigned as error in the bill of exceptions contained in the judgment roll. This court has held (Peers v. Reed, 23 Nev. 404, 48 Pac. 897) that on an appeal taken from the judgment alone, where there is no statement or bill of exceptions in the record, there will be a consideration only of the record constituting the judgment roll. It is in the record constituting the judgment roll that the very error relied upon by appellant is brought to this court. Hence we conclude that no assignment of errors as contemplated by section 13 of the Civil Practice Act of 1915 is necessary or required in such a case.

[1] It was not necessary, in view of the specific provisions of the several sections of our statute pertaining to practice on appeals, for the appellant in this case to file or serve an assignment of errors as contemplated by section 13 of the Practice Act of 1915. The appeal here taken is from the order of the district court sustaining the demurrer to appellant's complaint and from the judgment entered pursuant to appellant's failure to amend; hence under subdivision 2 of section 5273, Rev. L., all of the matters pertaining to the proceedings in the trial court, so far as those proceedings affect the standing or rights of appellant, are properly here embraced within the judgment roll as certified by the clerk of the district court. Respondents, in furtherance of their motion to dismiss plaintiff's appeal, refer to the decision of this court in the case of Coffin v. Coffin, 163 Pac. 731, wherein we dismissed the appeal upon a motion made for that purpose for the reason that appellant had failed to comply with section 13 of the Practice Act of 1915, inasmuch as he had failed to serve or file his assignment of errors within time. That case is not controlling in the matter at bar. It is distinguished from the case under considera-mining the question here, we deem it suffition inasmuch as there the appeal was sought to be taken from the judgment entered after

[2] Viewing the matter as we do, it becomes unnecessary for us to determine the question as to the right of appellant to an Suffice it to say in order nunc pro tune. this respect, however, that we find it to be a rule supported by eminent authority that the object and purpose of a nunc pro tunc order is to make a record speak the truth concerning acts already done. Without deter

cient to intimate that an order nunc pro tune cannot be made use of or resorted to to sup

U. S. 136, 10 Sup. Ct. 487, 33 L. Ed. 865; | the employés and officers thereof and for their Hyde v. Curling, 10 Mo. 359; Hickman v. City of Fort Scott, 141 U. S. 415, 12 Sup. Ct. 9, 35 L. Ed. 775; Wyllie v. Heffernan, 58 Mo. App. 657; State v. White, 16 Ind. App. 260, 44 N. E. 589.

"As near as I can learn the board of trustees | damages. In other words, the only point on have not met since last March.

which the lower court sustained the demurrer

was that the words used in the letter upon which the action was based were not actionable per se, and for this reason alone spe.. cial damages must be alleged and proven. Therefore the only questions with which we are here concerned may be stated as follows: (1) Are the words complained of actionable per se?

"I urge you to attend the next stockholders' meeting to be held on March 7th next, and if you cannot attend said meeting, then if you will sign and send to me the inclosed proxy, I will attend the next meeting of the stockholders and vote every share sent to me, together with my own, in favor of reducing the salary and traveling expense account from ten thousand dollars to five thousand dollars per annum. When this is done I am satisfied that within twelve or eighteen months the Nevada Fire Insurance Company can pay a dividend to its stockholders. "As I am not personally acquainted with many of the stockholders, for that reason I refer you to the Farmers' & Merchants' National Bank of Reno, the Lyon County Bank of Yering-prove special damages? ton and the Bank of Sparks at Sparks, as to my standing in the community in which I reside. "Sincerely yours, C. E. Mack, "Stockholder of the Nevada Fire Insurance Company'

-and that said plaintiff is informed and upon such information verily believes, and therefore alleges upon such information and belief, that on or about the 18th day of January, 1916, at Reno, Nev., said defendant, contriving to injure the plaintiff herein, and his general reputation for honesty, integrity, fidelity, business ability, and fair dealing, and thereby to expose him to public hatred and contempt, did then and there publish in about 260 other letters identical with that hereinbefore quoted, except as to the names and addresses of the persons to whom they were sent, the exact number of which said plaintiff does not know and cannot ascertain and allege at the time of the filing hereof, written and deposited by him in the United States post office or mail at Reno; Nev., postage prepaid, and addressed and directed to about 260 of the other stockholders of said corporation, among whom were the following."

Then follows a long list of the names of persons residing in this and adjoining states, alleged to be stockholders of the Nevada Fire Insurance Company and to whom the letter is alleged to have been written.

Section 7 of appellant's complaint is as follows:

"That the following words contained in said letters and the said publication or publications thereof were false, libelous, and defamatory, 'I find, however, that the company is overloaded with salary and traveling expense to the extent of nearly $10,000 per year,' and were so published of and concerning said plaintiff, and that the remaining statements in said letter were willfully and maliciously intended by said defendant to give force, color, and effect to the false and defamatory publication hereinbefore in this paragraph quoted."

The complaint then alleges that the stockholders who received the letter containing the libelous matter complained of understood the same, and that the defendant intended that they should so understand the publication, for the purpose of injuring the plaintiff and his reputation for honesty, integrity, fidelity, business ability, and fair dealing, and thereby expose him to public hatred and contempt. The demurrer interposed to this complaint was lengthy and specific. It challenged the complaint, among other things, on the grounds of failure to state facts sufficient to constitute a cause of action.

The trial court held the complaint good as against the demurrer in all respects save and

(2) Is it necessary, in view of the language of the letter and in view of the allegations of the complaint, for plaintiff to allege and

In approaching the principal question here, it may be well to note at the outset that the letter written by respondent, in which the libelous words and assertions are alleged to exist, nowhere mentions the appellant. The assertion in the letter to which libel is attributed is.all contained in one sentence:

ed with salary and traveling expenses to the ex"I find, however, that the company is overloadtent of nearly $10,000 per year."

The whole question might be said to turn on the word or term "overloaded."

Section 8 of the complaint performs the office and function known in pleadings of this kind as the "innuendo." There it is alleged:

said above-quoted words so constituting said "That said defendant intended and meant by false and libelous and defamatory publication or publications that the plaintiff herein took advantage of his offices as a director and the president of said corporation and of his position as a member of the executive committee thereof and of the confidence and trust reposed in him by the other directors of said corporation to obtain more compensation for his said services so rendered by him under said contract of employment than they were worth; and that said plaintiff and the other directors of said corporation in this way mismanaged said corporation and its affairs and was guilty of malfeasance in his said offices of director and president of said corporation, to the loss, damage, and detriment of said corporation and the stockholders thereof; and that said stockholders who received said false, libelous, and defamatory publication or publications so understood the same, and the said defendant intended that they should so understand said false, libelous, and defamatory publication or publications.

[3] In determining whether words charged are libelous per se, they are to be taken in their plain and natural import according to the ideas they convey to those to whom they are addressed; reference being had not only to the words themselves but also to the circumstances under which they were used.

[4, 5] The term "overload," used in the expression, in connection with the other matters contained in the letter, conveys a definite and positive meaning. The expression itself in its ordinary acceptation means "loaded with too heavy a burden" (Standard Dict.); "to load too heavily" (Webster). The expression has been used as meaning overcharged, as with reference to an electric circuit. We fail, however, to find any authority giving the term a meaning which might be constru