Cragun v. Second District Court in and for Weber County
| Decision Date | 16 March 1934 |
| Docket Number | 5499 |
| Citation | 83 Utah 456,30 P.2d 205 |
| Court | Utah Supreme Court |
| Parties | CRAGUN v. SECOND DISTRICT COURT IN AND FOR WEBER COUNTY et al |
Original proceeding by Wiley M. Cragun for a writ of prohibition to prevent the Second District Court in and for Weber County, the Hon. E. E. Pratt, Judge thereof, from dismissing an appeal taken from a decision of E. B. Harrison Assistant Director of the Department of Registration revoking plaintiff's license to practice medicine.
Alternative writ of prohibition made permanent.
Royal J. Douglas, of Ogden, for plaintiff.
Wade M. Johnson, of Ogden, and Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for defendants.
This is an original proceeding by Wiley M. Cragun, herein referred to as plaintiff, unless otherwise indicated, for a writ of prohibition to prevent the district court of the Second judicial district of the state of Utah in and for Weber county from dismissing an appeal taken from a decision or order of the department of registration of the state of Utah.
The court has indicated by order duly entered that it intends to render a judgment dismissing plaintiff's appeal from the decision of the department of registration revoking his license to practice medicine in the state of Utah.
The following is a resume of the history of the proceedings one way or another affecting the case covering a period since March, 1930, and about which there appears to be no dispute. It appears that the plaintiff was from the 6th day of July, 1911, until the order of revocation of the department of registration, entered on March 6, 1930, duly licensed to practice as a physician and surgeon in the state of Utah. On the latter date the director of the department of registration made an order revoking the license of the plaintiff to practice medicine and surgery.
After a hearing and entering an order by the department of registration, and within time, plaintiff appealed to the district Court of Salt Lake County. Notice of appeal and undertaking on appeal were duly filed, and costs were paid. The department of registration refused to transmit the records and files to the district court of Salt Lake county. Application was made to the district court for an alternative writ of mandamus to compel the department of registration to transmit the records and files in the cause to the court. The department of registration filed a demurrer to the petition. After holding the matter under advisement for some time, the court sustained the demurrer of the department to the application for the writ of mandamus. While the matter was being held under advisement by the district court, plaintiff appealed direct to the Supreme Court of Utah from the same order of revocation made by the department of registration. The case was entitled Harrison v. Cragun and is reported in 78 Utah 445, 3 P.2d 1092. It was there held that an appeal from an order of the department of registration revoking the license of a physician and surgeon duly licensed to practice medicine and surgery in Utah must be first taken to the district court. That appeal to the Supreme Court was dismissed on authority of the case of Baker v. Department of Registration (October 2, 1931) 78 Utah 424, 3 P.2d 1082, 1089.
After the dismissal of the appeal in the case of Harrison v. Cragun, supra, the plaintiff, Cragun, then perfected an appeal from the same order of revocation to the district court of Weber county, Utah. This appeal was subsequently dismissed, it is suggested, upon the ground that it was not perfected within thirty days after the entry of the order of revocation. The decision of the district court of the Second judicial district holding that the appeal was not perfected in time was no doubt based upon the decision in the case of Baker v. Department of Registration, supra, holding that, "In an appeal from the department of registration to the district court, the procedure and practice prescribed by law for appeals in civil cases from final judgments of a justice of the peace to the district court in so far as such procedure * * * is applicable," is applicable to appeals from decisions of the department of registration.
It then appears from the record that the scene of activity shifted back to the original appeal taken to the Third district court. The record shows that on the 24th day of April, 1933, a notice was served by counsel for plaintiff, Cragun, upon counsel for the department of registration, service of which is admitted; that demurrer interposed had, on that day, been overruled. There then appears a stipulation signed by counsel for the respective parties whereby it is stipulated that "notwithstanding any deficiency in the methods of procedure that may have arisen prior to the decision in the case of Baker v. Department of Registration, 78 Utah 424, 3 P.2d 1082, in which the Supreme Court of the State of Utah defined the method of procedure in appeals from the Department of Registration." And that: "It appearing that notice of appeal and bond was served and filed and the filing fee paid within the statutory period for taking appeals from an inferior court to the district court for trials de novo; that thereafter the Supreme Court of the State of Utah in Baker v. Department of Registration, 78 Utah 424, 3 P.2d 1082, announced the rules of procedure covering appeals from the Department of Registration and stated that said appeals shall be taken to the District Court of the county in which the alleged offense was committed, therefore this stipulation is entered into to move said cause to the District Court of Weber County, State of Utah, for trial de novo."
In pursuance of this stipulation the appeal was, by order of the district court of Salt Lake county, transferred to the district court of Weber county, Utah. The plaintiff here, defendant in that action, then filed a demurrer to the complaint filed against him before the department of registration. This demurrer was sustained by the district court of Weber county and upon allowance by the court an amended complaint was filed on behalf of the department of registration. A demurrer was then filed by plain...
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