Louisiana State Bd. of Medical Examiners v. Barber

• Decision Date: 31 January 1955
• Docket Number: No. 8286,8286
• Citation: 78 So.2d 60
• Court: Court of Appeal of Louisiana — District of US
• Parties: The LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, Plaintiff-Appellee, v. Paul BARBER, Defendant-Appellant.

Page 60

78 So.2d 60

The LOUISIANA STATE BOARD OF MEDICAL EXAMINERS, Plaintiff-Appellee, v. Paul BARBER, Defendant-Appellant.

No. 8286.

Court of Appeal of Louisiana, Second Circuit.

Jan. 31, 1955.

Rehearing Denied March 8, 1955.

Watson & Williams, Natchitoches, for appellant.

G. F. Thomas, Jr., Natchitoches, for appellee.

GLADNEY, Judge.

The appeal is from a judgmeng granting an injunction restraining Paul Barber from practicing medicine contrary to provisions of the Medical Practice Act, LSA-R.S. 37:1261-37:1290. Suit was brought pursuant to the procedure prescribed in section 1286. This section also authorizes the assessment of a civil penalty not exceeding $100 and attorney's fees not exceeding $50. The evidence in the record establishes beyond doubt that appellant was engaged in business as a chiropractor in Natchitoches, Louisiana, and as such held himself out to the public for treating various conditions and diseases of the body by the use of force, or by applying force to and manipulating certain parts of the body, its bones and joints.

Before considering the merit of the appeal we direct out attention to a motion by appellant to transfer the appeal to the Supreme Court of Louisiana. Counsel argues the transfer should be made, as the district court was without jurisdiction to entertain orders of appeal to this court.

It is uniformly recognized by our courts that when orders of appeal have been entered, and the appeal perfected by filing the appeal bond, the trial court is divested of taking any further action in the case except for testing the sufficiency of the bond. See Gulf States Finance Corporation v. Colbert, 1953, 223 La. 743, 66 So.2d 793; Vaughn v. American Bank & Trust Company, 1953, 223 La. 479, 66 So.2d 4; Gasoline Plant Const. Corporation v. Blair, La.App.1949, 38 So.2d 657; Felder v. Springfield Farmers Cooperative Association, Inc., La.App.1947, 29 So.2d 547. The trial court is not divested of any of its jurisdiction until the appeal is perfected by due filing of the bond, if required. See State ex rel. Massicot v. Bahn, La.App.1948, 35 So.2d 37; Horton v. Western Union Telegraph Company, La.App.1941, 200 So. 44; State ex rel. Continental Supply Co. v. Fontenot, 1919-1922, 152 La. 912, 94 So. 441; Charvanel v. Esvard, 1922, 150 La. 305, 90 So. 658.

Pertinent minutes of the trial court reflect the following entries:

'October 21st, 1954.

'Louisiana State Board of Medical Examiners v. Paul Barber. Application for new trial and/or rehearing called, heard and submitted. In oral opinion By The Court: Let the application for new trial and/or rehearing be denied. Judgment read and signed. Motion by counsel for defendant for orders of suspensive and devolutive appeal. By The Court: Let orders of both suspensive and devolutive appeal be granted the defendant herein returnable to the Honorable Supreme Court of the State of Louisiana, sitting in the City of New Orleans, Louisiana, on or before December 17th, 1954. Suspensive appeal bond fixed at $1,000.00. Devolutive Appeal bond fixed at $150.00.

'October 26th, 1954.

'Louisiana State Board of Medical Examiners v. Paul Barber. Appeal bond tendered to the Clerk for filing. At which time plaintiff made an oral motion that the appeal previously entered herein be recended (sic) because it was made to the wrong Court. By The Court: Let the appeal previously entered herein be recended (sic) and let new orders of appeal both suspensive and devolutive be granted the defendant herein returnable to the Honorable Second Circuit Court of Appeal sitting in the City of Shreveport, Louisiana, on or before December 17th, 1954. Suspensive appeal bond fixed at $1,000.00. Devolutive appeal bond fixed at $150.00. To which counsel for defendant objects on the grounds that his bond had been filed previously to the recending (sic) of the orders by the Court.'

The minutes of the district court indicate that when the appeal bond was tendered to the clerk, counsel for plaintiff at that time moved that the orders of appeal be rescinded as having been taken to the wrong court. Thus the tender of the bond and the motion to rescind came to the attention of the court at the same time. We assume the court took the position the bond was not then filed, otherwise he could not have granted the motion to rescind. The issue, therefore, turns upon whether a mere tender of the appeal bond and nothing more, constituted a filing of the document. We think the answer should be 'No.' In legal practice the term 'filing' may refer to the delivery to the proper officer of a paper to be kept on file, or, in another sense, the word has been defined as an act of the clerk receiving a paper into custody and giving it a place among other papers. The term generally imparts or implies that the document is delivered and received; that the officer authorized to receive it has knowledge of its filing, that the paper shall remain with the clerk as a record, and that it has not been withdrawn. 36 C.J.S. File, pp. 755, 756.

The principles so enumerated are not inconsistent with views expressed by our courts. See Stafford v. Harper, 1880, 32 La.Ann. 1076; Succession of Honore, 1911, 127 La. 882, 54 So. 135. It appears to us that the clerk had no opportunity to receive or accept the bond tendered for filing before counsel for appellee and the judge a quo intervened and prevented its filing. As a result of the action of the court, the clerk could not and did not receive the bond for filing. It was never filed. We conclude, therefore, that the court was not divested of jurisdiction when it properly acted in rescinding the improvident orders to the Supreme Court and directing an appeal to this court.

Further grounds sustaining the validity of the district court's action may be found in the concurring opinion of Justice McCaleb in Vaughn v. American Bank & Trust Company, 1953, 223 La. 479, 66 So.2d 4, which holds that where the order of appeal has erroneously been granted to a court which has no jurisdiction of the appeal, the trial court may upon timely application, rescind its order and grant another order of appeal to the proper appellate court. See Vallee v. Hunsberry, 1901, 108 La. 136, 32 So. 359, 360; McWilliams v. Michel, 1891, 43 La.Ann. 984, 10 So. 11; Louisiana State Board of Medical Examiners v. McHenery, 1953, 222 La. 984, 64 So.2d 242. The motion to transfer the appeal is denied.

Now passing to the errors assigned to the judgment of the district court, we consider first a contention made that plaintiff's petition failed to set forth the domicile of the Louisiana State Board of Medical Examiners as required by Code of Practice article 172, and because of such failure the petition should have been dismissed since counsel made timely objection. In creating plaintiff Board the Legislature failed to give it a fixed domicile. The record does contain the names and residences of each of the board members. In the appeal as presented to us we cannot conceive of any interest of appellant that should require this information. He most assuredly has not been injured by the...