Eliza E. Coffin filed with the State Board of Medical Registration her application for a certificate entitling her to a license to practice medicine, surgery, and obstetrics in Starke county, conformably to the act of March 8, 1891. Acts 1891, p. 255, sections 1323a-j Burns Supp. 1891, sections 5352a-j Horner 1891.
In the fifth section of the act it is provided that “The board may refuse to grant a certificate to any person guilty of felony or gross immorality, or addicted to the liquor or drug habit to such a degree as to render him unfit to practice medicine or surgery, and may, after notice and hearing, revoke a certificate for like cause. An appeal may be taken from the action of the board.”
, On October 22, 1891, the board refused to grant her a certificate “on the ground that she had been and was guilty of gross immorality.” She gave bond for costs, and appealed to the Starke Circuit Court, which was the proper tribunal.
From the motion and affidavits it appears that during the time covered by these proceedings Vurpillat was prosecuting attorney of the forty-fourth judicial circuit, of which Starke county is a part; that Glazebrook was deputy for Starke county, and had charge of all state business therein until April 26, 1898, when he left the county as an officer of the 157th Indiana Volunteer Infantry; that on May 9, 1898, Oourtright was' appointed deputy prosecutor for Starke county, as successor to Glazebrook, and from that date has continued in charge of all the business of the prosecutor’s office in Starke county; that in the interim between Glaze-brook’s and Oourtright’s incumbencies Vurpillat was in charge; that Glazebrook before leaving arranged with Robbins to look after his business in court during his absence; that Robbins, acting solely under his supposed authority from Glazebrook, went with the attorneys of Eliza E. Coffin before the court, and consented to the entry of the judgment “by agreement.” In his affiadvit in support of the motion Court-right affirmed: “And affiant says that on May 17, 1898, while affiant was in the court room of the Starke Circuit Court, affiant heard one ITenry R.Robbins let judgment go by agreement in a case in which said Robbins stated that he represented Bradford D. L. Glazebrook, which case affiant after-wards learned was the one entitled above; and affiant says that such judgment was taken without his knowledge or consent.” In his affidavit in opposition to the motion Robbins said:
In the fifth section of the statute it is made “the duty of the prosecuting attorney of said circuit to appear in such causes and represent the board.” The board is not, properly speaking, a party to the appeal from its action to the circuit court. When an application for a certificate is filed with the board, the proceeding is ex parte. The board, in acting on the application, is entrusted by the people with the exercise of the police power of the State for their protection. If the applicant appeals from the action of the board, the proceeding is the same one in which the board acted; and the duty, which before rested upon the board, to see to it that certificates issue only to properly qualified applicants, devolves upon the prosecuting attorney and the court. The procedure and the duty of the prosecuting attorney are similar to the procedure and duty in applications for change of name. Section 5864 R. S. 1881, section 7812 Burns 1894. The duty of the prosecutor is similar to his duty in resisting petitions for divorce that “remain undefended.” Section 1038 R. S. 1881 and Horner 1897, section 1050 Burns 1894; Scott v. Scott, 17 Ind. 309. It is by reason of the people’s interest in the subject-matter that prosecutors and courts may not permit these proceedings, ex parte in form, to become ex parte in fact.
The applicant contends that this appeal should fail because it is manifest from Robbins’s affidavit, which was acted ■upon by the court as true, that Courtright, in consenting to Robbins’s claim that this cause was under his control on
The applicant also urges that the ruling was right because the motion did not show any defense to the application. As the record stood prior to the entry of the “judgment by agreement,” the applicant was prosecuting an appeal from the action of the hoard in determining that she was not a proper person, as defined in the act, to be granted a certificate. The entry of the “judgment by agreement” was in violation of law. That the action of the board was right will be presumed until the contrary is legally established on appeal.
Ruling reversed, and cause remanded, with directions to-sustain the motion, and to set aside the “judgment by agreement,” and to proceed further in conformity with this decision.