Berkeley v. State of Georgia

Parker, J. 1. The refusal of the State Board of Medical Examiners to permit a person to take the examination required of applicants for licenses to practice medicine, where such person fails or refuses or is unable, for lack of educational qualifications or for other reasons, to make application “upon such form and in such manner as shall be adopted and prescribed by the board,” is not a judgment of the Board of Medical Examiners refusing a license to practice medicine from which an appeal to a jury in the superior court will lie as provided and contemplated by the Code, §§ 84-907' and 84-920. 2. An appeal from the judgment of the Board of Medical Examiners, by a person who is refused a license by the board, to a jury in the superior court, is to be had as in other cases provided by law. Code, § 84-920. An appeal from a judgment of an ordinary or a justice of the peace to the superior court is to be transmitted by such ordinary or justice of the peace to the clerk of the superior court of the county in which the proceedings may have been had. §§ 6-205, 6-302. These sections contemplate the entering of the appeals in the court of ordinary or in the justice court, and the bond required pn an appeal from the court of ordinary must be filed in that court. Sims v. Walton, 111 Ga. 866 (36 S. E. 966); Bates v. Weaver, 145 Ga. 241 (88 S. E. 986). It follows that an appeal from the judgment of the Board of Medical Examiners shall be filed with the board and transmitted by the *712 board to the superior court of the county of the residence of the appellant. An appeal not so filed and transmitted is invalid and should be dismissed on motion. Bower v. Patterson, 116 Ga. 814 (43 S. E. 25); Ford v. Redfearn, 145 Ga. 498 (89 S. E. 611). 3. A motion in the form of a written petition and rule nisi issued thereon to arrest, set aside, and vacate a verdict and judgment rendered on what purported to be an appeal from the action of the State Board of Medical Examiners in refusing to permit a person to take the examination required of applicants for licenses to practice medicine, where such person did not make the necessary application prescribed by the board, as referred to in division 1, and which alleged appeal was not filed with the board nor transmitted by it to the superior court, was made by the State of Georgia during the term at which the verdict and judgment were rendered. Said motion alleged that the decision of the Board of Medical Examiners was not a judgment from which an appeal would lie, that said alleged appeal was never filed with the board nor transmitted by it to the superior court as required by law, that the superior court had no jurisdiction to render the said verdict and judgment, and that said verdict and judgment were void because they were obtained by fraud perpetrated upon the court and against the State of Georgia; and that the State of Georgia had a good and valid defpnse against the purported appeal, and had filed no defense and was not represented in court when the verdict and judgment were taken on account of an honest mistake and misunderstanding as to when the court would be held. Held: That the court did not err in overruling a demurrer to the motion, and in sustaining such motion, and in arresting, vacating, and setting aside the verdict and judgment to which it related. See the Code, §§ 110-701, 110-702, 110-707, 110-709, Lyons v. State, 7 Ga. App. 50 (66 S. E. 149), Benford v. Shiver, 13 Ga. App. 135 (78 S. E. 860), Southern Cotton Oil Co. v. Taylor, 18 Ga. App. 56 (88 S. E. 798), Longshore v. Collier, 37 Ga. App. 450 (140 S. E. 636), Mullis v. Bank of Chauncey, 40 Ga. App. 582 (150 S. E. 471), Perry v. Fletcher, 46 Ga. App. 450 (167 S. E. 796), Dugan v. McGlann, 60 Ga. 353, Turner v. Jordan, 67 Ga. 604, Goodrich v. Handy, 91 Ga. 29 (16 S. E. 108), Union Compress Co. v. Leffler, 122 Ga. 640 (50 S. E. 483), Ford v. Clark, 129 Ga. 292 (58 S. E. 818), Montgomery v. Suttles, 191 Ga. 781(3) (13 S. E. 2d, 781), and Deen v. Baxley State Bank, 192 Ga. 300 (15 S. E. 2d, 194). *713 This ease was considered and decided by the whole court, as required by the act approved March 8, 1945 (Ga. L. 1945, p. 232), there being a dissent in the division to which the case was originally assigned. Judgment affirmed. Sutton, P. J., concurs; MacIntyre, J., concurs specially; Broyles, Q. J., and Gardner, J., concur in the judgment. Felton, J., dissents.