Lewis v. State Board of Medical Examiners

Jenkins, J.

(After stating the foregoing facts.) Only the second headuote requires elaboration. It will be seen from an inspection of the section of the act quoted in the statement of facts that no specified time is there fixed when the board shall prefer written charges after an appeal has been entered by the defendant. It is contended by counsel for the plaintiff in error that while the act specifies no time when the written charges should be preferred, the act should be construed as requiring that such charges be preferred at the first term of the court after an appeal has been entered, and that the same rule should apply here'as in cases of an award made by arbitrators under the provisions of the Civil Cpde (1910), § 5030 et seq. It was held in Train v. Emerson, 134 Ga. 589 (2) (68 S. E. 42§) that “Where a submission to arbitrators was made under the statute (Civil Code, § 4486 et seq.) [Civil Code of 1910, § 5030 et seq.], and they made an award, but did not return it to the superior court to which it was properly returnable for eleven months, during which .time three terms of court intervened, and fourteen months thereafter the party in whose favor thfe award was made filed a motion to have a judgment nunc pro tune entered on it, there was no error in denying such motion.” There would, however, appear to be a clear distinction between the effect of such an award by arbitrators and the ’decision of the State Board of Medical Examiners. The award by the arbitrators is binding upon no one, and is.of no legal effect whatever, until properly returned and entered upon the minutes of the proper court, while the decision by the State Board of Medical Examiners is a judgment within itself, and is final unless set aside on appeal. But conceding that the written charges should have been preferred by the board at the first term of the court after the appeal had been entered, it would seem to us that the rule to be here applied would be more nearly analogous to - cases where a defendant is in default by reason of his failure to answer at the proper time, the rule being that where a case has never been marked “in default” on the docket, and no order has been taken declaring it to be “in default,” an answer to the merits of the case, filed at a term subsequent to the appearance term but before judgment is taken, will not be dismissed because not filed in time. McKenzie v. Consolidated Lumber Co., 142 Ga. 375 (82 S. E. 1062). See also Daniel v. Nixon, 21 Ga. App. 206 (93 S. E. 1013); and Buford v. Southern Cotton Oil Co., 20 Ga: App. 581, 583 (93 S. E. 318), and cases there cited. What would have been the remedy of the plaintiff in. error had the case been .called for trial at a time prior to the filing of the written charges by the board need not be determined. The evidence in this case demanded the verdict directed, and the judgment of the superior court is therefore

Affirmed.

Wade, C. J., and Luke, J., concur.