Curryer v. Oliver

• Decision Date: 07 May 1901
• Docket Number: 3,766
• Citation: 60 N.E. 364,27 Ind.App. 424
• Parties: CURRYER v. OLIVER
• Court: Indiana Appellate Court

60 N.E. 364

27 Ind.App. 424

CURRYER v. OLIVER

No. 3,766

Court of Appeals of Indiana

May 7, 1901

Mandate modified October 11, 1901, Reported at: 27 Ind.App 424 at 429.

From Clay Circuit Court; S. M. McGregor, Judge.

Suit by William F. Curryer, Secretary of the State Board of Registration and Examination, against Jacob B. Oliver to revoke the defendant's license to practice medicine.

From a judgment for defendant, plaintiff appeals.

Reversed.

W. L Taylor, Attorney-General, Merrill Moores, Rowland Evans, E. S. Holliday, F. A. Horner and J. M. Rowley, for appellant.

A. W. Knight and S.D. Coffey, for appellee.

OPINION

ROBY, J.

William F. Curryer filed his verified petition in the Clay Circuit Court on January 19, 1899, which petition was in the words and figures following: "State of Indiana, Marion county, ss. In Clay Circuit Court, January term 1899. William F. Curryer, being duly sworn, on his oath, says: That he is a member and secretary of the State Board of Medical Registration and Examination; that on the 13th day of July, 1897, one Jacob B. Oliver, obtained from the State Board of Medical Registration and Examination a certificate entitling him to practice medicine, surgery, and obstetrics, upon his affidavit and that of two freeholders as to his identity and qualifications; also upon a physician's license issued by the clerk of the Clay Circuit Court, March 21, 1892, which license was in the words and figures following, to wit: I, W. S. Carpenter, clerk of the circuit court of Clay county, in said State, do hereby certify that Jacob B. Oliver has complied with the laws of the State of Indiana relating to the practice of medicine, surgery, and obstetrics, and is hereby authorized to practice medicine, surgery, and obstetrics in said county. Witness my hand and seal of said court this 21st day of March, 1892. W. S. Carpenter, Clerk.' And affiant says that the said license so exhibited to the said board was obtained by said Oliver by misrepresentation and fraud, and by false and fraudulent representation to the effect that he, the said Oliver, was a graduate of a reputable medical college, when in fact said Oliver was not a graduate of any medical college whatever. And affiant says that upon the evidence of said license of 1892, so falsely and fraudulently procured, this board issued to said Oliver a certificate entitling him to a license to practice medicine, surgery, and obstetrics. Therefore, affiant prays that the aforesaid license issued upon the certificate heretofore granted by said board shall be revoked. William F. Curryer. Subscribed and sworn to before me this 11th day of January, 1899. M. H. Peacock, Notary Public. (L. S.)

"Be it remembered that, upon the filing of the aforesaid verified charge, it was unanimously resolved by said board that said charge be certified to the Clay Circuit Court of the State of Indiana, for a finding of guilty, or not guilty, as to the charges therein made against Jacob B. Oliver.

"I, William F. Curryer, Secretary of the State Board of Medical Registration and Examination of the State of Indiana do hereby certify that the foregoing is a true, full, and correct copy of the specific charge, verified by affidavit, and of the action of said board thereon, which has been presented to sail board, making definite and specific charges against Jacob B. Oliver, the holder of a license issued by the clerk of Clay county circuit court of Indiana, upon a certificate granted by the said board; and, further, that said charge has been ordered by said board to be referred to the Clay Circuit Court, of the State of Indiana. Witness my name and the seal of said board at Indianapolis, this 11th day of January, 1899. William F. Curryer. (Seal.) Indorsed: Filed January 19, 1899. Charles L. Mace, Clerk."

Thereupon a summons was issued to appellee, who appeared, demurred to the complaint, and, upon his demurrer being overruled, answered by general denial. The cause was submitted to the court for trial without a jury, and evidence introduced. At the close of the petitioner's evidence, the appellee moved the court for a finding and judgment in his favor on the evidence, which motion was by the court sustained. This action of the court presents the sole question.

The proceeding is brought by virtue of the provisions of the act of 1897. § 5352e Horner 1897, § 7323e Burns Supp. 1897; State, ex rel., v. Webster, 150 Ind. 607, 50 N.E. 750.

The motion for judgment on the evidence was equivalent to a demurrer to the evidence, and the same rules of construction apply. Elliott's App. Proc., § 687. The principles which the court must apply in considering a demurrer to the evidence are: (1) The court is bound to accept as true all the facts which the evidence tends to...