Ah Fong v. McCalla , 7 Idaho 20 ( 1900 )

HUSTON, C. J.

The appellant made application to the board of state medical examiners for a license to practice as a physician and surgeon within the state of Idaho. His application was refused, and he made application to the district court of Ada county for a writ of certiorari to review the proceedings and action of said medical board. The district court issued its writ of review, to which return was made. by said board. The application of appellant was made and bled on August 5, 1899; writ of review was issued on same day, returnable on the fourth day of September, 1899. The record contains a jumbled mass of papers, without order or method of arrangement. It would seem that on the seventeenth day of August what purports to be a return to the writ of review by the board of medical examiners was filed in the district court. On the twenty-eighth day of August, 1899, a demurrer to the petition of appellant was filed. On the fifth day of September, 1899, a motion for a further return was filed by petitioner. On the same day said order for a further return was granted on consent of counsel for defendants, said return to be made on 8th of September, 1899. On September 8th, the time for making said amended return was extended to September 11th. On September 11th an amended return, showing the action of said board on the 8th of September, 1899, at a special meeting thereof, in the matter of the application of appellant for a license. On the 14th of September, 1899, the cause “came on regularly to be heard before the court on plaintiff’s motion to strike out defendants’ amended return herein and on defendants’ demurrer to plaintiff’s application.” After argument the court took the matter under advisement, and on the 29th of September, 1899, entered an order sustaining the demurrer of defendants to plaintiff’s petition, and ordered judgment acordingly, the plaintiff having declined to amend or answer further. From this action and judgment of the district court this appeal is taken.

The only question presented for our consideration is the correctness of the action of the district court in sustaining the demurrer of defendants to plaintiff’s complaint. We think the action of the district court was erroneous. The petition of appellant was sufficient to entitle him to the writ prayed. The order of the district court and the judgment thereon are reversed, and the cause is remanded, with instructions to the district court to overrule the demurrer of defendants, and further proceed in said case according to law. Costs of this appeal to appellant.

Quarles and Sullivan, JJ., concur.