Irwin

In this action .defendants’ demurrer to plaintiff’s complaint was sustained. A judgment of dismissal followed, and the plaintiff has appealed. The action was for libel. The main point of the demurrer was that the complaint showed upon its face that the alleged defamatory matter was privileged under the provisions of subdivision 2 of section 47 of the Civil Code, which makes a publication privileged if made in a judicial proceeding. It appears from the face of the complaint that the alleged libelous matter was published in the allegations of a cross-complaint filed by the respondent B. C. Stockwell and respondents Newby and Palmer, her attorneys, in a previous action entitled McAlvay v. Consumers Salt Company (a corporation) and B. C. Stockwell. The appellant contends that the privilege given by subdivision 2 of Civil Code, section 47, has an exception, and that the alleged defamatory matter comes under the exception. The exception is that such privilege given to judicial proceedings will not be allowed to serve as a cloak to conceal a palpable libel where not necessary to preserve the legitimate freedom of action of the parties in a judicial proceeding. In Carpenter v. Ashley, 148…