27 Ind. App. 424 | Ind. Ct. App. | 1901
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
“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
“I, William E. 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 said board, malting 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 Olay Circuit Court, of the State of Indiana. Witness my name and tire seal of said board at Indianapolis, this 11th day of January, 1899. William E. Curryer. (Seal.) Indorsed: Piled 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.
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 demurx’er to the evidence are: (1) The court is bound to accept as time all the facts which the evidence tends to prove and as against the party demurring to draw from the evidence all such reasonable inferences as a jury might draw. (2) If
The issue in the case was whether appellee obtained his license by fraud and misrepresentation, the misrepresentation alleged being that he (appellee) was a graduate of a reputable medical college, when, in fact, he was not a graduate of any medical college.
The evidence consisted of the record kept in the office of the clerk of the Clay Circuit Court, showing the issuance of a license to appellee under the act of 1885, as set out in the petition above quoted. The clerk who made the record testified that the license would not have been issued if appellee had not made an affidavit, and that the information as to the name of the university from which appellee graduated, and the date of his diploma, were taken from such affidavit. The affidavit itself could not be found, although search was made in the proper place at various times. The boob containing the copy of the license was identified as “The Eecord of Physicians’ Certificates”. It was kept in the clerk’s office of Olay county. Eo objection was made to the admission in evidence of this record. The act then in force provided, among other things, that “Such applicant shall pay to such clerk for such license the sum of $1.50, and such clerk shall record such license, together with the name of the college in which such applicant graduated, and the date of his or her diploma, in a book to be kept for such purpose, and which shall be a public record.” §7319 Burns 1894.
There can be no doubt upon this evidence that appellee procured a license upon the representation that he graduated from the institution named at the time named; at
It being established that the appellee obtained a license by virtue of the representations that he had graduated from' Howard University at the time named, the next question is as to the truth of the representation.
On June 2, 1897, appellee made his affidavit, which was introduced in evidence, and upon which a certificate of registration was issued to him, which is also in the record, stating in such affidavit that he was not a graduate of Howard University. From the evidence so introduced, in the absence of any explanation or denial by appellee, the ultimate facts charged in the petition might have been properly inferred.
The learned attorneys who represent the appellee have in their brief stated many alleged facts not found in the record. In so far as those facts are pertinent, it would have been better to have presented them to the court below in the usual manner, while those not relevant have no place in the record in any form. Many of the expressions contained in the brief are in ill taste.
Modification of Mandate.
The mandate herein is so modified as that judgment is reversed and the cause remanded, with instructions to grant a new trial, and for further proceedings not inconsistent herewith.