Me. Justice Wolverton
delivered the opinion.
Complaint was filed with the Board of Medical Examiners, entitled, “State of Oregon, on relation of Oswald H. Beckman, E. Jansen, M. M. Walker, and Jay Tuttle, Plaintiffs, v. O. B. Estes, Defendant,” charging the defendant with dishonorable and unprofessional conduct as a practicing physician. All the members of the board seem to have signed the complaint, and were complainants in the proceeding. The board revoked the license of the defendant, who appealed to the circuit court, and there procured a reversal of its decision. A notice of appeal from the judgment of the circuit court to this court by the board of examiners and the State of Oregon, signed by Fulton Bros., attorneys for said board, and the district attorney, for the state, was served upon the defendant, and the appeal perfected. The defendant moves to dismiss the appeal because : First, the board of examiners is not a party to the action, and as such has no authority to take an appeal; second, no action was ever taken by said board, authorizing the appeal, and the same was taken and prosecuted without its authority (this objection is based upon affidavits tending to show that Messrs. Fulton Bros, were not directed and author[200]*200ized, by resolution or direct action of the board, to prosecute the appeal in its behalf); and, third, there is no authority of law for the state to become a party to such action or proceeding.
The act authorizing the organization of the Board of Medical Examiners (Laws, 1895, p. 61, 65, § 6) empowers it, among other things, to revoke the license of a practicing physician for unprofessional or dishonorable conduct. In case of a revocation, the licentiate is given the right of appeal to the circuit court in and for the county in which the hearing was had. Either party may appeal from the judgment of the circuit court to the supreme court, in like manner as in civil actions, within sixty days after the rendition thereof. Then follow these provisions : “If such judgment shall be in favor of the party appealing from the decision of said board, and in case said examining board does not appeal from judgment within sixty (60) days, then and in that case said board shall, at the end of sixty (60) days, and immediately upon the expiration thereof, issue to such successful party the usual license to practice medicine and surgery in this state, and, in addition thereto, shall reinstate upon the records of said board the name of such successful applicant in case of the revocation of his license by such board. In case of such appeal to the supreme court by said board, no such license shall be issued or reinstatement be required until the final determination of said cause, as hereinafter provided. In case the final decision of the supreme court be against said medical examining board, then and in that case said court shall make such order in the premises as may be necessary, and said board shall act accordingly.”
1. It is'difficult to determine from this crude piece of legislation just what procedure is meant to be established for taking and perfecting an appeal from the circuit to_ [201]*201the supreme court when the judgment is in favor of the accused practitioner. The language of the act, that “either party may appeal,” would seem to allude more especially to the parties to the proceeding, and not to the tribunal charged with the function of determining the cause as between them. But the further provision above quoted is a plain recognition of the right — while not conferred in express terms — of the board also to appeal from the decision of the circuit to the supreme court in case the judgment should be adverse to its decision, and we think its effect is to empower the board to prosecute an appeal in vindication of its own findings. In this view, the first reason assigned as a ground of dismissal fails.
2. The notice of appeal appears to be regularly signed by Fulton Bros, as the attorneys for the board, but the respondent questions their authority to thus prosecute the appeal in its behalf, and urges that, unless it appears they were so authorized by resolution or other express direction of that body at the time of the service of such notice, this court has not acquired jurisdiction to hear the cause, and hence that it should be dismissed. An attorney, under the statute, is a public officer; and, when he appears in his official capacity, it will be presumed that it is with the requisite authority of the party whom he professes to represent, until the contrary is established. His mere appearance in such capacity will be taken as prima facie evidence of his authority for so doing, and ordinarily the courts will seek no further for confirmation of such authority. The statute has, however, made provision by which the court may, on motion of either party, based upon a proper showing, require the attorney for the adverse party to produce or prove the authority under which he appears, and until he does so may refuse to recognize him as such. Waiving all [202]*202question as to the proper time of making the application under this statute, we presume that if, in due time, the attorney failed to produce or prove his authority, or it should become manifest that he was acting without warrant from his supposed client, and that he was so acting for the moving party, the court would, upon motion, dismiss the proceeding: Clark v. Willett, 35 Cal. 534; Dove v. Martin, 23 Miss. 588; King of Spain v. Oliver, 2 Wash. C. C. 429 (Fed. Cas. No. 7,814). But in the case at bar Messrs. Pulton Bros, have produced a resolution of the board, adopted November 5, 1897, the genuineness of which is not questioned, whereby it appears that they took the appeal in pursuance of the directions of its president, and it purports to ratify and confirm their action in the premises. It is objected that the president was without power, in the first instance, to authorize Pulton Bros, to prosecute the appeal for the board, and hence that their act in giving the notice in its behalf was void, which the board could not cure by ratification. The objection, it is claimed, involves the power of this court to entertain the appeal through such notice. Having been signed by regularly admitted and practicing attorneys, it is prima facie sufficient. But there is more than a prima facie case here. They were directed by the president of the board to take the appeal. And this is as far as the court would usually prosecute the inquiry, and it would not seek for a confirmation of the president’s authority: Low v. Settle, 22 W. Va. 387, 392. Under these conditions, the notice could not be said to be void. At most, it was voidable only, and would warrant the exercise of jurisdiction upon the appeal. The act of the attorneys, prima facie, was regular, because of the official character in which it was performed, coupled with and based upon the act of an officer of the board, having prima facie authority to confer the [203]*203power, and was susceptible of ratification by the board, which would have effect by relation, and confirm that which was already done: Kinsley v. Norris, 60 N. H. 131; Am. Ins. Co. v. Oakley, 38 Am. Dec. 561. The evidence to establish the attorneys’ authority to prosecute the appeal is ample, and the notice is quite sufficient to give this court jurisdiction of the cause.
Mr. Geo. Clyde Fulton for both motions.
Mr. F. D. Winton, contra. Free access — add to your briefcase to read the full text and ask questions with AI
Me. Justice Wolverton
delivered the opinion.
Complaint was filed with the Board of Medical Examiners, entitled, “State of Oregon, on relation of Oswald H. Beckman, E. Jansen, M. M. Walker, and Jay Tuttle, Plaintiffs, v. O. B. Estes, Defendant,” charging the defendant with dishonorable and unprofessional conduct as a practicing physician. All the members of the board seem to have signed the complaint, and were complainants in the proceeding. The board revoked the license of the defendant, who appealed to the circuit court, and there procured a reversal of its decision. A notice of appeal from the judgment of the circuit court to this court by the board of examiners and the State of Oregon, signed by Fulton Bros., attorneys for said board, and the district attorney, for the state, was served upon the defendant, and the appeal perfected. The defendant moves to dismiss the appeal because : First, the board of examiners is not a party to the action, and as such has no authority to take an appeal; second, no action was ever taken by said board, authorizing the appeal, and the same was taken and prosecuted without its authority (this objection is based upon affidavits tending to show that Messrs. Fulton Bros, were not directed and author[200]*200ized, by resolution or direct action of the board, to prosecute the appeal in its behalf); and, third, there is no authority of law for the state to become a party to such action or proceeding.
The act authorizing the organization of the Board of Medical Examiners (Laws, 1895, p. 61, 65, § 6) empowers it, among other things, to revoke the license of a practicing physician for unprofessional or dishonorable conduct. In case of a revocation, the licentiate is given the right of appeal to the circuit court in and for the county in which the hearing was had. Either party may appeal from the judgment of the circuit court to the supreme court, in like manner as in civil actions, within sixty days after the rendition thereof. Then follow these provisions : “If such judgment shall be in favor of the party appealing from the decision of said board, and in case said examining board does not appeal from judgment within sixty (60) days, then and in that case said board shall, at the end of sixty (60) days, and immediately upon the expiration thereof, issue to such successful party the usual license to practice medicine and surgery in this state, and, in addition thereto, shall reinstate upon the records of said board the name of such successful applicant in case of the revocation of his license by such board. In case of such appeal to the supreme court by said board, no such license shall be issued or reinstatement be required until the final determination of said cause, as hereinafter provided. In case the final decision of the supreme court be against said medical examining board, then and in that case said court shall make such order in the premises as may be necessary, and said board shall act accordingly.”
1. It is'difficult to determine from this crude piece of legislation just what procedure is meant to be established for taking and perfecting an appeal from the circuit to_ [201]*201the supreme court when the judgment is in favor of the accused practitioner. The language of the act, that “either party may appeal,” would seem to allude more especially to the parties to the proceeding, and not to the tribunal charged with the function of determining the cause as between them. But the further provision above quoted is a plain recognition of the right — while not conferred in express terms — of the board also to appeal from the decision of the circuit to the supreme court in case the judgment should be adverse to its decision, and we think its effect is to empower the board to prosecute an appeal in vindication of its own findings. In this view, the first reason assigned as a ground of dismissal fails.
2. The notice of appeal appears to be regularly signed by Fulton Bros, as the attorneys for the board, but the respondent questions their authority to thus prosecute the appeal in its behalf, and urges that, unless it appears they were so authorized by resolution or other express direction of that body at the time of the service of such notice, this court has not acquired jurisdiction to hear the cause, and hence that it should be dismissed. An attorney, under the statute, is a public officer; and, when he appears in his official capacity, it will be presumed that it is with the requisite authority of the party whom he professes to represent, until the contrary is established. His mere appearance in such capacity will be taken as prima facie evidence of his authority for so doing, and ordinarily the courts will seek no further for confirmation of such authority. The statute has, however, made provision by which the court may, on motion of either party, based upon a proper showing, require the attorney for the adverse party to produce or prove the authority under which he appears, and until he does so may refuse to recognize him as such. Waiving all [202]*202question as to the proper time of making the application under this statute, we presume that if, in due time, the attorney failed to produce or prove his authority, or it should become manifest that he was acting without warrant from his supposed client, and that he was so acting for the moving party, the court would, upon motion, dismiss the proceeding: Clark v. Willett, 35 Cal. 534; Dove v. Martin, 23 Miss. 588; King of Spain v. Oliver, 2 Wash. C. C. 429 (Fed. Cas. No. 7,814). But in the case at bar Messrs. Pulton Bros, have produced a resolution of the board, adopted November 5, 1897, the genuineness of which is not questioned, whereby it appears that they took the appeal in pursuance of the directions of its president, and it purports to ratify and confirm their action in the premises. It is objected that the president was without power, in the first instance, to authorize Pulton Bros, to prosecute the appeal for the board, and hence that their act in giving the notice in its behalf was void, which the board could not cure by ratification. The objection, it is claimed, involves the power of this court to entertain the appeal through such notice. Having been signed by regularly admitted and practicing attorneys, it is prima facie sufficient. But there is more than a prima facie case here. They were directed by the president of the board to take the appeal. And this is as far as the court would usually prosecute the inquiry, and it would not seek for a confirmation of the president’s authority: Low v. Settle, 22 W. Va. 387, 392. Under these conditions, the notice could not be said to be void. At most, it was voidable only, and would warrant the exercise of jurisdiction upon the appeal. The act of the attorneys, prima facie, was regular, because of the official character in which it was performed, coupled with and based upon the act of an officer of the board, having prima facie authority to confer the [203]*203power, and was susceptible of ratification by the board, which would have effect by relation, and confirm that which was already done: Kinsley v. Norris, 60 N. H. 131; Am. Ins. Co. v. Oakley, 38 Am. Dec. 561. The evidence to establish the attorneys’ authority to prosecute the appeal is ample, and the notice is quite sufficient to give this court jurisdiction of the cause.
Mr. Geo. Clyde Fulton for both motions.
Mr. F. D. Winton, contra.
3. The remaining question is one involving a defect of parties, and cannot be raised for the first time upon appeal. The motion to dismiss will therefore be overruled, as will also the motion of the board of examiners to dismiss respondent’s cross appeal.
Motion Overruled.
[Decided 21 March, 1898.]
On Motion to Strike Amended Bill op Exceptions, and On Motion to Dismiss Gross Appeal.
[52 Pac. 571.]
Mr. Justice Wolverton
4. Two motions are submitted at this time — one to strike out the amended bill of exceptions, and the other to dismiss the cross appeal — both of which were preferred by the Board of Medical Examiners. The motion to dismiss is based upon the fact that the notice of appeal was not served upon either the relators or the Board of Medical Examiners. The purpose of the proceeding is to revoke the license of a regularly admitted and practicing physician for unprofessional and dishonorable conduct, [204]*204and is quasi criminal in its nature. This being so, the state was properly made a party thereto, and, having been served with the notice of appeal, service thereof on the relators, or the board, is not necessary to the jurisdiction of the court. Substantially the same question was presented by a former motion, and decided as we now hold. In the opinion rendered at that time we inadvertently said that all the members of the board seemed to have signed the complaint, and were complainants in the proceeding. This was a mistake, as neither of the complainants was a member of the board, and resulted from a confusion of the names in the record. The misstatement of the fact, however, did not affect the result.
5. The judgment having been entered in the circuit court in the above cause on March 6, 1897, the bill of exceptions was settled, allowed, and signed on April 3, and the appeal perfected April 29. At a subsequent term, to wit, on December 24, 1897, upon motion of the defendant, the bill of exceptions was amended over the objection of the appellant. The amended bill of exceptions has been certified up, and it is this additional record that appellant seeks to have stricken out. The question presented is whether a bill of exceptions which has been settled, allowed, and signed by the trial judge can be amended at a subsequent term, and after an appeal has been taken and perfected. Such a paper, when filed with the clerk, becomes a part of the record in the cause: Hill’s Ann. Laws, § 233. So that the amendment sought was of the record, which the court allowed by an order nunc pro tunc, and, after setting aside the former certificate, appended a new one to the amended bill of exceptions. The apparent object of the amendment was to make the record conform to the truth. The matters certified in the amended bill are in one or two particulars inconsistent with those contained in the original, and [205]*205are of such, a nature as that they might become of vital importance at the hearing. The Board of Medical Examiners appeared by counsel when the application was presented, thus waiving any irregularities preliminary to the hearing, and the remaining question is solely one of power in the court below to make the amendment.
' Some jurisdictions have adopted a rigid rule as respects amendments. of this character, as in Mississippi, it is held that if the bill of exceptions is wrong when it is made part of the record in the cause, it must remain so, for no authority exists for its correction either in the supreme court or the court which settled and allowed it: Bridges v. Kuykendall, 58 Miss. 827. So in the Supreme Court of the United States, it is settled that after the term has expired without the court’s control over the case having been reserved by some rule or special order, and especially after it has been entered in the supreme court, all authority of the court below to alter or amend a bill of exceptions formerly presented and allowed is at an end: Michigan Ins. Bank v. Eldred, 143 U. S. 293, 298 (12 Sup. Ct. 450).
But many authorities concur in holding to a much more liberal doctrine. By these it is established that a bill of exceptions, once settled and signed and properly filed, becomes a part of the record in the case to which it relates, and stands precisely upon the same footing as any other record. If it is settled and filed during the term, the presiding judge who signed it may, before the expiration thereof, make any changes or alterations which he may think necessary to make it conform to the facts, but thereafter he loses all power to alter or change it on his own motion, or upon mere suggestion. If, however, a bill of exceptions, through inadvertence or mistake, has been so made up as not to fairly and truly recite or represent what it purports to show as having actually trans[206]*206pired during the course of the proceedings, it may, by order of the court entered nunc pro tunc, upon proper notice, be so amended at a subsequent term as that it will accord with the real facts: Heinsen v. Lamb, 117 Ill. 549 (7 N. E. 75); Martin v. St. Louis, etc. Ry. Co. 53 Ark. 250 (13 S. W. 765); Churchill v. Hill, 59 Ark. 54 (26 S. W. 378); State v. Clark, 67 Wis. 229 (30 N. W. 122); Freel v. State, 21 Ark. 221; Goodrich v. City of Minonk, 62 Ill. 121; Newman v. Ravenscroft, 67 Ill. 496; Beckwith v. Talbot, 2 Colo. 604; Doane v. Glenn, 1 Colo. 454; Walker v. State, 102 Ind. 502 (1 N. E. 856); Morgan v. Hays, 91 Ind. 132; Harris v. Tomlinson, 130 Ind. 426 (30 N. E. 214); Lefferts v. State, 49 N. J. Law, 26 (6 Atl. 521); Warner v. Thomas Dying Works, 105 Cal. 409 (38 Pac. 960, 37 Pac. 153); McFarland v. West Side Improvement Co., 47 Neb. 661 (66 N. W. 637). And this may be-done pending an appeal: Seymour v. Thomas Harrow. Co., 81 Ala. 250 (1 South. 45); Lake Erie R. R. Co. v. Bates, 19 Ind. App. 386 (46 N. E. 831); Harris v. Tomlinson, 130 Ind. 426; Brooks v. Bruyn, 40 Ill. 64. We incline strongly to the more liberal practice as being better suited to sub-serve the ends of justice, and are therefore constrained to adopt it. Both motions will be denied:
For the Board of Examiners there was a brief oyer the names of Cicero M. Ldleman, Attorney-General, Harrison Allen and Fulton Bros., with an oral argument by Messrs. Idleman and George Clyde Fulton.
Motions Denied.