State Ex Rel. Duncan v. Dean

BELT, J. The State Board of Medical Examiners revoked the license of defendant to practice in Oregon as a physician and surgeon, by reason of alleged unprofessional conduct. Defendant thereupon appealed to the Circuit Court and the cause was submitted to a jury which returned a verdict in favor of the defendant. Judgment was entered “in compliance and in conformity with said verdict” and the order of the State Board of Medical Examiners was reversed. Hence this appeal. It is urged for the first time on appeal that the Circuit Court erroneously submitted to a jury for its determination the question as to whether the defendant was guilty of unprofessional conduct. It is now too late to complain. The jury was impaneled and sworn to try this matter with the consent of the parties. Having in effect stipulated that the matter should be decided by the jury, the board now complains of an adverse finding. As stated in 35 C. J. 224: “In a case not of right triable by jury a party cannot complain that the case was so tried if he did not object to that mode of trial, or if he failed to object *539 until after a jury was sworn and impaneled to try the case; and even where the party has an absolute right to have certain issues tried by the court, the right may be waived and is waived by proceeding to trial before the jury without any protest or objection.” Citing Danziger v. Metropolitan Electric R. R. Co., 81 Hun, 5 (30 N. Y. Supp. 580); Wright v. Wright, 50 Tex. Civ. App. 459 (110 S. W. 158); Houston Real Estate Inv. Co. v. Hechler, 47 Utah, 215 (152 Pac. 726), which support the text. It is unnecessary to decide whether the defendant, under Section 8555, Or. L., was entitled as a matter of right to a jury trial. It is certain that the court had jurisdiction of the subject matter and the parties. Assuming, without deciding, that it was error to submit this cause to a jury, such action would not have the effect of depriving the court of jurisdiction. The judgment of the Circuit Court in reinstating the license of the defendant is affirmed. Affirmed.