Decided 24 November, 1898.
On the Merits.
[55 Pac. 25.]
For Dr. Estes there was a brief oyer the name of J. H. & A. M. Smith, with an oral' argument by Mr. Albert Marshall Smith. Mr. Justice Mooredelivered the opinion.
This is a proceeding in the name of the state, upon the relation of private parties, before the State Board of Medical Examiners, to have the medical license of O. B. Estes revoked for dishonorable and unprofessional conduct, alleged to have been committed by unlawfully producing an abortion. The defendant having denied the material allegations of the complaint, a trial was had, resulting in a revocation of his license, from which action he appealed to the Circuit Court of Marion County, which changed the venue to Clatsop County, where the cause was tried, the action of the board reversed, and an order made that defendant be permitted to resume the practice of his profession, but the court denied his motion for costs and disbursements. From this judgment the state, the relators, and the defendant appeal.
It is contended by the relators’ counsel that the trial court never obtained jurisdiction of the proceeding, and hence erred in refusing to dismiss the attempted appeal from the action of the board of examiners. The motion to dismiss said appeal was predicated upon the following grounds : (1) That no notice of appeal was ever served upon the secretary of the board of examiners; (2) that no appeal bond, as provided by law, was filed with or approved by said secretary; (3) the transcript was insufficient in form, and not filed within the time prescribed by law; (4) that the notice of appeal did not set forth the grounds of error nor describe the action of the board complained of; and (5) that the pretended appeal *208was taken to the Circuit Court of Marion County, when it should have been to the Circuit Court of Multnomah County.
6. The notice of appeal in question has a certificate indorsed thereon acknowledging due service thereof, and purporting to have been subscribed by “Byron E. Miller, Secretary of Board of Medical Examiners.” It is argued that a written acknowledgment of the service of a notice of appeal by a party is insufficient to authorize the court to assumé jusisdiction without proof of the authenticity of the signature. The objection insisted upon is technical, and he who would take advantage of a technicality must be governed by the rule which he invokes: Bilyeu v. Smith, 18 Or. 335 (22 Pac. 1073); Hermann v. Hutcheson, 33 Or. 239 (53 Pac. 489). This rule compels a party who excepts to an irregularity to specify definitely the particular point which he maintains constitutes a departure from the prescribed mode of procedure, that the trial court may have an opportunity to correct the irregularity by permitting the record to be amended, if possible: Elliott, App. Proc. § 532; 2 Enc. Pl. & Prac. 348; Scholfield v. Pope, 103 Ill. 138. It will be observed that the point relied upon in the trial court as a ground for dismissing the appeal is that the notice thereof was not served upon the secretary of the board of examiners, while the objection urged here is that there is no proof of the service of such notice, — a contention which tacitly admits that the notice was served, but denies that the proof thereof was sufficient; thus showing that a question of irregularity, not affecting the jurisdiction, is presented, which this court as an appellate tribunal cannot entertain, because it was not presented to or considered by the court below.
7. The statute requires a person desiring to take an appeal from the action of the board of examiners to cause *209to be served upon the secretary of said board a -written notice thereof, which shall contain a statement of the grounds of such appeal, and shall file in the office of such secretary an appeal bond to the State of Oregon, with good and sufficient surety, to be approved by said secretary, conditioned for the speedy prosecution of such appeal, and the payment of such costs as may be adjudged against him thereon: Laws, 1895, p. 61, § 6. The bond filed with the secretary complied with these requirements, but, because the liability of the sureties was limited to the sum of $500, it is contended that the trial court never acquired jurisdiction of the appeal. It will be remembered that the ground of the motion in the trial court upon this question was that no appeal bond as provided by law was filed, etc. This assignment does not point out the error now complained of with the degree of particularity required in such cases, and, under the rule hereinbefore stated, is insufficient to call the attention of the trial court to the irregularity here relied upon.
8. When a person desiring to appeal from the decision of the board of examiners has caused to be served upon its secretary a notice of appeal, and filed in his office an appeal bond, it is made the duty of said secretary, within ten days after such service and approval of the bond, to transmit to the clerk of the circuit court to which the appeal is taken a certified copy of the pleadings, etc., together with the bond and notice of appeal: Laws, 1895, p. 61, § 6. This duty was duly performed within the time prescribed by law, except that the certificate authenticating the transcript failed to recite that the copies contained therein had been by him compared with the originals, etc., as required by Section 748, Hill’s Ann. Laws; whereupon the court, by rule, re*210quired the secretary to send up an amended transcript, duly certified, which was done, but not until after the expiration of ten days from the service of the notice of appeal. It is now argued by counsel for the relators that it was the duty of the defendant to obtain and file a perfect transcript, and that because the original certificate was defective, thereby necessitating an amended transcript, which was not filed within the time prescribed by law, the court never obtained jurisdiction of the appeal. When an appeal from the judgment or decree of the circuit court has been perfected, the appellant within a given time must file with the clerk of this court a transcript of the final record : Hill’s Ann. Laws, § 541. In such case it has been held that, where the statute expressly requires the appellant to file the transcript in the appellate court, the clerk of the trial court, in its preparation, acts as his agent, and that the clerk’s failure to comply with the requirements of the law in this respect is attributable to the laches of the appellant: 2 Enc. Pl. & Prac. 280, and cases cited in note 2. Where, however, the statute imposes upon the clerk of the trial court the duty of filing the transcript on appeal, such requirement does not relieve the appellant from the necessity of showing that the failure of the clerk to file the transcript within the time prescribed by law was not imputable to him: Crawford v. Haller, 2 Wash T. 161 (2 Pac. 353); Callahan v. Houghton, 2 Wash St. 539 (27 Pac. 125). The secretary of the board having complied with the statute as far as the filing of the transcript was concerned, relieved the defendant from all duty in that respect, and he is not responsible for the appended certificate, which, if informal or imperfect, the court could, as in cases on appeal from justices’ courts, have corrected by proper amendment.
9. The notice of appeal assigns the errors which the *211defendant claimed the board of examiners committed, and, the judgment complained of being described therein with reasonable certainty, the statutory requirement that the notice shall contain a statement of the grounds of such appeal is sufficiently complied with. The statute provides that an appeal from the action of the board of examiners revoking a medical license shall be to the circuit court in and for the county in which the hearing was had upon which such license was revoked : Section 6, supra. The transcript was filed in the office of the Clerk of the Circuit Court for Marion County, but it is claimed that the record is silent as to where the hearing was had, and, this being so, it must be presumed that the board met in Multnomah County, where the regular meetings thereof are required to be held (Laws, 1895, p. 61, § 2), and hence the appeal was not taken to the proper court. The motion in the trial court to dismiss the appeal recites that such hearing was had before the said board in Marion County, and the verdict and decision of the board purports to have been signed at Salem, in said county, in view of which the point contended for is without merit.
Counsel for the relators, in their brief, contend that the circuit court erred in refusing to dismiss the appeal for other reasons, which will not be considered, because the grounds thereof were not assigned in their motion in the court below.
10. Considering the case upon its merits, it appears that the woman upon whom the operation is said to have been performed, appeared as a witness before the board of examiners at defendant’s trial, and testified that he perpetrated the overt act with the commission of which he was charged, but at his trial in the circuit court, as a witness for the state, she denied that any abortion had been produced upon her, or that the defendant had per*212formed any dishonorable or unprofessional operation upon her; whereupon the court permitted counsel for the state to cross-examine her at great length, but the testimony brought out thereby is substantially the same as that given in her direct examination, in which she testified that, by reason of her illness, she was not responsible for what she said when appearing before the board of examiners, and that, being unable to read the English language, she did not understand the purport of an affidavit subscribed by her which charged defendant with the commission of said dishonorable and unprofessional conduct. Counsel for relators thereupon called another witness, by whom they sought to prove that an abortion had been produced upon the last witness by showing her physical condition at the time it was alleged that she had been delivered of a foetus, but the court, upon defendant’s objection to the introduction of such testimony, refused to permit the witness to answer the question propounded unless counsel could give some assurance that he would thereafter introduce testimony tending to connect the defendant with the commission of the offense, to which, he replied : “I don’t know whether I can do that or not. I don’t like to engage to do a thing, and then not live up to the standard. I should like to try it. I want to be perfectly honest and fair with the court. I don’t know whether I can or not. I tell you frankly and honestly that I doubt it.” The court thereupon refused to permit the witness to answer the question, and, no further testimony being offered, the jury was instructed to return a verdict in favor of the defendant, to which counsel for the relators excepted. The testimony sought to be introduced by the relators tended to contradict their chief witness, but it was incompetent to prove that defendant was guilty because such witness had been delivered of a foetus, and, as counsel frankly admitted that he doubted *213his ability to connect defendant with the offense, the court committed no error in rejecting the testimony: Dunn v. People, 29 N. Y. 523 (86 Am. Dec. 319); McCarney v. People, 83 N. Y. 408 (38 Am. Rep. 456).
11. It is contended by counsel for defendant that the court erred, in refusing to' allow their client his costs and disbursements incurred in his defense. The expenses incident to the trial of an action not being recoverable at common law, the right to recover them must be found in the statute : 5 Enc. Pl. & Prac. 108; Wood v. Fitzgerald, 3 Or. 568; Mitchell v. Downing, 23 Or. 448 (32 Pac. 394).
12. The legislative assembly, in creating the board of examiners, undoubtedly considered that the physician whose license had been revoked would be powerless to review the act of the board except for an erroneous exercise of judicial functions, or where it had exceeded its jurisdiction (Hill’s Ann. Laws, § 585), in view of which the right of appeal in such cases was conferred; but, such appeal not being from the judgment of a court, the general statute providing for the recovery of costs and disbursements can have no application, and defendant must rely upon the statute giving the appeal for his relief. The provision on the subject of costs reads as follows : “In case the final decision of the supreme court be against said medical examining board, then and in that case said court shall make such order in the premises as may be necessary, and said board shall act accordingly ; provided, that in no case shall an appeal bond be required of said board, nor shall any costs be adjudged or taxed against the same:” Laws, 1895, p. 61, § 6. The act in question having made no provision for the recovery of costs in case the action of the board be reversed, defendant is not entitled to recover from the *214relators as in an ordinary action: Hill’s Ann. Laws, §§ 564, 565.
13. The statute provides that if the action of the board be reversed by the circuit court, and no appeal taken from such judgment to this court within sixty days, the board of examiners shall immediately upon the expiration thereof reinstate upon the records of said' board the name of the person whose license was revoked; but, in case the board shall appeal from such judgment, no reinstatement shall be required until the final determination of said cause upon appeal: Laws, 1895, p. 61, § 6. The trial court in reversing the action of the board adjudged that the defendant should be permitted to practice medicine and surgery in this state as if the verdict and decision of such board had not been rendered. It is contended that such an order of the circuit court was premature, and that its judgment in this respect is erroneous. An appeal is not like a writ of error in civil cases at common law, which was a matter of right, but exists only in such cases as the legislative assembly may prescribe, and, having provided a particular method for reviewing the action of the board, such method is exclusive: 2 Enc. Pl. & Prac. 16; Savage v. Gulliver, 4 Mass. 171. The judgment of the circuit court in this respect is erroneous, in view of which it is reversed so far as it relates to the immediate reinstatement of defendant to the privilege of which he had been denied by the board, but in all other respects affirmed. The cause will be remanded, with directions to the court below to order the said board of examiners to reinstate forthwith upon the record of said board the name of O. B. Estes as a practicing physician and surgeon, and for such further proceedings as may be necessary, not inconsistent with this opinion.
Modieied.