State ex rel. Horton v. Bourke.

• Citation: 129 S.W.2d 866
• Decision Date: 14 June 1939
• Docket Number: No. 35020.,35020.
• Parties: STATE OF MISSOURI at the relation of RAY B. HORTON v. T.M. BOURKE, PAUL FORGRAVE, HARRY F. PARKER, E.T. BOHAN, MALVERN CLOPTON, E. SANBORN SMITH and W.L. BRANDON, Members of the STATE BOARD OF HEALTH, Appellants.
• Court: United States State Supreme Court of Missouri

129 S.W.2d 866

STATE OF MISSOURI at the relation of RAY B. HORTON v. T.M. BOURKE, PAUL FORGRAVE, HARRY F. PARKER, E.T. BOHAN, MALVERN CLOPTON, E. SANBORN SMITH and W.L. BRANDON, Members of the STATE BOARD OF HEALTH, Appellants.

No. 35020.

Supreme Court of Missouri.

Division One, June 14, 1939.

Appeal from McDonald Circuit Court. — Hon. Daniel E. Bird, Judge.

REVERSED.

Roy McKittrick, Attorney General, and Arthur O'Keefe, Assistant Attorney General, for appellant; Stanley Clay of counsel.

(1) Mandamus will not lie in this case. Sec. 9120, R.S. 1929; State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W. (2d) 635; State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 65 S.W. (2d) 943; 38 C.J. 568; State ex rel. Schneider v. Bourke, 338 Mo. 86, 89 S.W. (2d) 31; State v. Edwards, 260 S.W. 445; 38 C.J., p. 575; State ex rel. Kramer v. Schwartz, 82 S.W. (2d) 63, 333 Mo. 932; Laws 1901, p. 209, sec. 7; Russell v. Dibble, 132 Wash. 51, 231 Pac. 18; 95 A.L.R. 1424; State ex rel. Onion v. Supreme Temple Pythian Sisters, 227 Mo. App. 557, 54 S.W. (2d) 468. (2) The questions and facts adjudicated in the former case are now res adjudicata. State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W. (2d) 635; Baumhoff v. St. Louis & Kirkwood Railroad Co., 205 Mo. 248, 104 S.W. 5; Avery v. Kansas City Central Bank, 221 Mo. 71, 119 S.W. 1106; Bierman v. Crecelius, 135 Mo. 386, 37 S.W. 121; Bushman v. Barlow, 15 S.W. (2d) 329, 321 Mo. 1052; 34 C.J. 902; State v. Bliss, 99 S.W. (2d) 91; Chouteau v. Gibson, 76 Mo. 38; In re McMeanany's Guardian, 270 S.W. 662, 307 Mo. 98; 15 R.C.L. 974. (3) The petition does not state a cause of action because there is no allegation of a demand and refusal. Ferris Extraordinary Legal Remedies, p. 280, sec. 236; State ex rel. Erwin v. Holman, 301 Mo. 333, 256 S.W. 776; State ex rel. Onion v. Supreme Temple, 54 S.W. (2d) 468, 227 Mo. App. 557; 18 R.C.L., p. 123; 38 C.J., p. 576; Bailey's Extraordinary Remedies, p. 792; State ex rel. Abbott v. Adcock, 225 Mo. 335, 124 S.W. 1100. (4) The testimony of witnesses, Schneider, Tuebel and Coglizer and others was not material and was not a basis of revocation. Sec. 9113, R.S. 1929; State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W. (2d) 635. (5) The decision of the Supreme Court that it had jurisdiction on appeal from the order of the circuit court restoring to the respondent his license makes that question res adjudicata. State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W. (2d) 635; State ex rel. Lentine v. State Board of Health, 65 S.W. (2d) 943, 334 Mo. 220; Ellis v. Starr Piano Co., 49 S.W. (2d) 1080; Kansas City v. St. Louis & Kansas City Land Co., 260 Mo. 395, 169 S.W. 62; Baisley v. Baisley, 21 S.W. 29, 113 Mo. 544; 34 C.J. 907; Balwin v. Iowa State Traveling Men's Assn., 51 Sup. Ct. 517, 75 L. Ed. 1244, 283 U.S. 522. (6) Respondent made false assertions in his application for license. State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W. (2d) 635; 34 C.J., p. 868; 2 Freeman on Judgments, sec. 627; 15 R.C.L. 950; Bushman v. Barlow, 321 Mo. 1052, 15 S.W. (2d) 218; Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629; Squaw Creek District No. 1 v. Turney, 138 S.W. 12, 235 Mo. 80. (7) The State Board of Health's discretion as to reciprocity cannot be controlled by mandamus. Sec. 9113, R.S. 1929; State ex rel. Walker v. State Board of Health, 61 S.W. (2d) 925. (8) Respondent's high school qualifications were and are not sufficient to cause this writ to issue. State ex rel. Horton v. Clark, 320 Mo. 1190, 9 S.W. (2d) 635; Sec. 9120, R.S. 1929.

Kelley & Tatum for respondent.

(1) The respondent's motion to dismiss appellants' appeal should be sustained for the following reasons, to-wit: (a) The appellants have willfully presented a false record in the abstract of record prepared and filed herein by the appellants. (b) The appellants have willfully interpolated more than forty-three consecutive pages of foreign matter into their abstract of record. St. Louis v. Chartrand, 254 S.W. 866. (c) The appellants have indistinguishably commingled and garbled together in their abstract of record matters of exception and matters of record proper to the extent that said abstract of record presents a confused record. Wallace v. Libby, 231 Mo. 341; Barham v. Shelton, 221 Mo. 66; Keaton v. Weber, 233 Mo. 695; Palmer v. Moyers, 14 S.W. (2d) 657; Myrick v. Hamilton, 26 S.W. (2d) 1008. (d) The appellants, in their brief, have not made a sufficient and intelligible statement of the facts involved in this appeal, and their statement does not constitute a fair and complete presentation of the ultimate facts. Sec. 1060 R.S. 1929, Rule 15, Mo. Sup. Ct.; Le Clair v. Le Clair, 77 S.W. (2d) 862; Seifert v. Seifert, 52 S.W. (2d) 817; Terry v. Ingraham, 12 S.W. (2d) 763; Sims v. Hydraulic Press Brick Co., 19 S.W. (2d) 294; Bank of Meta v. Schnitzler, 67 S.W. (2d) 106; Evans v. General Explosives Co., 239 S.W. 487; Crockett v. K.C. Rys. Co., 243 S.W. 902; Kirby v. Balke, 266 S.W. 704. (2) Mandamus will lie in this case for Section 9120, Revised Statutes 1929, by its provisions, does not provide the respondent any remedy at all by certiorari, for Section 9120 allows the use of certiorari to review the action of the Board of Health only when the Board of Health has by its judgment revoked a physician's license and not when the application of one who applies for a license is refused. Sec. 9120, R.S. 1929; State ex rel. McCleary v. Adcock, 206 Mo. 550, 105 S.W. 270; State ex rel. Johnson v. Lutz, 136 Mo. 633, 38 S.W. 323. (3) The defense that respondents' have another efficient remedy at law other than mandamus is waived, as the record does not show that the point was made in the trial court or that any evidence of another remedy was introduced. State ex rel. Nee v. Tippin, 268 S.W. 666. (4) Since no bill of exceptions is abstracted, this cause must be heard on appeal only on the record proper. Billings Special Road Dist. v. Christian County, 5 S.W. (2d) 379, 319 Mo. 969. Brown v. Ins. Co., 228 S.W. 884. (5) If the appellants' abstract of record does not include the content of the bill of exception, it will be presumed that there was proper and sufficient evidence to support the judgment, and that the judgment is correct. Euler v. State Highway Comm., 55 S.W. (2d) 722; Fronk v. Fronk, 159 Mo. App. 548; Colorado Milling & Elevator Co. v. Rolla Wholesale Gro. Co., 102 S.W. (2d) 681. (6) The defense of res judicata was waived by appellants as the record does not show that the appellants availed themselves of that defense at the trial, or introduced any evidence in support thereof. 34 C.J. 1057; 2 Freeman on Judgments (5 Ed.), sec. 808, p. 1715; Koontz v. Whitaker, 111 S.W. (2d) 201. (7) Res judicata is an affirmative defense and must be both pleaded and proved, and there is nothing in the record to show proof of any facts amounting to res judicata by the appellants. Koontz v. Whitaker, 111 S.W. (2d) 201. (8) In mandamus, the appellate court must try the appeal upon the record and not de novo as in equity cases. State ex rel. v. German Mut. Life Ins. Co., 152 S.W. 620; State ex rel. v. Dreyer, 167 S.W. 1123. (9) An abstract statement of law not specifically stating that the lower court erred, is not a sufficient assignment of error and will not be considered. Le Clair v. Le Clair, 77 S.W. (2d) 862; Automatic Sprinkler Co. v. Stephens, 306 Mo. 518. (10) Laches is an equitable defense, and has no application in a mandamus action, which, is a law action. State ex rel. Hixon v. Nerry, 105 Mo. App. 458; Bevier v. Graves, 213 S.W. 76; Wengler v. McComb, 188 S.W. 78. (11) Laches is an affirmative defense, and the record does not show that such a defense was proved. Ambruster v. Ambruster, 31 S.W. (2d) 28; Breneman v. Laundry, 87 S.W. (2d) 429. (12) Mere delay, however long, standing alone, does not constitute laches, for laches is an unconscionable delay resulting in a detriment to your adversary. Jones v. McGonigle, 37 S.W. (2d) 892.

BRADLEY, C.

This cause is in mandamus and is against the State Board of Health. An amended alternative writ commanded the board to "vacate and annul all of the orders made" by it and pertaining to the revocation of the license of relator to practice medicine and surgery in this State, and to reinstate said license, or to show cause why such should not be done.

We have named in the caption the personnel of the board as would appear from a stipulation filed November 25, 1938, as to substituted appellants. Below, respondent was designated as relator and to avoid confusion we refer to respondent as relator, and to appellants as the State Board of Health, or just the board.

The original petition was filed October 20, 1933, and on same day an alternative writ of mandamus was issued. December 16, 1933, motion to quash the alternative writ was filed. Nothing further appears until December 31, 1935, when an amended petition was filed; an amended alternative writ was issued, returnable on day of issue; a general and a special demurrer were filed to the amended alternative writ, and were overruled; return, answer, and reply were filed; and the cause was tried, and by the judgment rendered the amended alternative writ was made peremptory. The board appealed.

The judgment is as follows: "It is by the court considered and adjudged that the amended alternative writ of mandamus heretofore issued should be made permanent and that a writ of peremptory mandamus be issued commanding and directing the State Board of Health of the State of Missouri and each and all of the members thereof (naming them) to forthwith vacate and annul all of the orders made by them, the members of the State Board of Health of the State of Missouri, or by their predecessors in office as members of said State Board of Health of the State of Missouri, concerning the revocation of the relator's license to practice medicine and surgery in the State of Missouri, and to forthwith issue unto the...