State ex rel. Beckman v. Estes

• Decision Date: 21 March 1898
• Citation: 52 P. 571,34 Or. 196
• Parties: STATE ex rel. BECKMAN et al. v. ESTES.
• Court: Oregon Supreme Court

52 P. 571

34 Or. 196

STATE ex rel. BECKMAN et al. v. ESTES.

Supreme Court of Oregon

March 21, 1898

Appeal from circuit court, Clatsop county; T.A. McBride, Judge.

Proceeding by the state, on the relation of O.H. Beckman and others against O.B. Estes to revoke his license to practice as a physician. From a judgment for defendant, plaintiff appeals. On motions to strike out the bill of exceptions and to dismiss the cross appeal. Denied.

F.D Winton, opposed.

WOLVERTON J.

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, and 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. 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 3d, and the appeal perfected April 29th. 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 Or. § 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 are 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. Bank v. Eldred, 143 U.S. 293, 298, 12 Sup.Ct. 450. But many...