Opinion
6 Div. 470.
January 14, 1926. Rehearing Denied April 8, 1926.
Appeal from Circuit Court, Jefferson County; John Denson, Judge.
J. S. McLendon, of Birmingham, for appellant.
The evidence does not show that the act complained of was committed in the division of the county of which the trial court has jurisdiction, and defendant was due the affirmative charge. Local Acts 1919, p. 62, § 2; Justice v. State, 13 So. 658, 99 Ala. 180; King v. State, 77 So. 935, 16 Ala. App. 341; Randolph v. State, 14 So. 792, 100 Ala. 139; Hardeman v. State, 99 So. 53, 19 Ala. App. 563.
Harwell G. Davis, Atty. Gen., and Jim Davis, Sol., and F. M. Dixon, Asst. Sol., both of Birmingham, for appellee.
Appellant cannot raise for the first time on appeal the question of failure to prove venue. Circuit Court rule 35; Eaton v. State, 101 So. 94, 20 Ala. App. 110; Id., 101 So. 471, 20 Ala. App. 187. It is not necessary to allege the system by which defendant practiced medicine. Robinson v. State, 102 So. 693, 212 Ala. 459; Wideman v. State, 104 So. 441, 213 Ala. 170.
Information in the nature of quo warranto is a civil proceeding, and is not governed by the rules and principles applicable to prosecutions for the conviction of crime. Taliaferro v Lee, 13 So. 125, 97 Ala. 92, 98; Ames v. Kansas, 4 S.Ct. 437, 111 U.S. 449, 28 L.Ed. 482; 32 Cyc. 1414, 2. The fact that the inquiry involves the ascertainment of conduct on the part of the respondent which is punishable as a criminal offense in a proper criminal proceeding does not change the civil character of the information, which looks to civil consequences only.
The proceeding in this case is authorized by subdivision 1 of section 9932, Code of 1923. Robinson v. State ex rel. James, 102 So. 693, 212 Ala. 459. Our statutory system of quo warranto is coextensive in scope with the common-law information in the nature of quo warranto, and as to practice and procedure is exclusive of the common law which it has supplanted. State ex rel. Weatherly v. B'ham Waterworks Co., 64 So. 23, 185 Ala. 388, 401, Ann. Cas. 1916B, 166. As to its civil character the statutory proceeding does not differ from the proceeding at common law.
The rule in civil cases is that the benefit of venue statutes may be waived by the defendant, and is waived by his failure to plead to the venue seasonably in the trial court. Woolf v. McGaugh, 57 So. 754, 175 Ala. 299, 307; Cleveland v. Little Cahaba Coal Co., 87 So. 567, 205 Ala. 369.
In so far as the case at bar is concerned, it will suffice to quote what this court has said of venue in its relation to territorial divisions of Jefferson county for the holding of probate courts, the principle being the same as for the circuit court:
"The act noted did not effect or intend the creation of two probate courts in Jefferson county. The act's effect was to assign the venue — not the jurisdiction over a subject-matter within the competency of such courts — of matters arising in a defined area to judicial cognizance at Bessemer, thereby establishing at Bessemer a mere branch, department, or division of the single unit, the probate court of Jefferson county. * * * If the appellant desired to save, and not waive, the objection to the power of the probate judge or court to decide the matter at Birmingham, the county seat, instead of at Bessemer, it should have been reserved in the lower court." Hines v. Hines, 84 So. 712, 203 Ala. 633.
So, also, as to the act of 1919 (Local Acts 1919, p. 62) creating the Bessemer division of the Tenth judicial circuit. It does not affect the general jurisdiction of subject-matter vested in the Birmingham judges of the circuit, but operates only upon the venue of actions within the circuit.
Hence the fact that the respondent's unlawful practice of medicine was in territory west of Bessemer, and therefore territorially within the jurisdiction of the Bessemer division, and without the jurisdiction of the Birmingham division, presented a question of venue merely, and, no plea to the venue being interposed by the respondent, he effectually waived his rights in the premises, and that objection is not available to him now on appeal.
The demurrer to the petition was properly overruled. It was not necessary to charge that the respondent was practicing medicine and treating human diseases according to any system. Wideman v. State, 104 So. 441, 213 Ala. 170. Nor was it necessary to describe in detail the particular acts and treatments complained of, which were of course matters of evidence and not of pleading. The petition in this case seems to be identical with that presented in Robinson v. State, 102 So. 693, 212 Ala. 459, and is in all respects sufficient.
The undisputed evidence clearly established the allegations of the petition, and the trial judge properly instructed the jury to find for the state, and properly entered a decree on the verdict prohibiting the respondent from practicing medicine.
It is complained that the form of the decree, as worded, will prevent the respondent from ever in future practicing medicine, even though he should hereafter become qualified by certificate and license. The decree will, however, be construed as it applies to the facts before the court, and is not intended, and will not be permitted, to exclude the respondent from the practice of medicine when he may become legally qualified to do so.
We find no error in the record, and the judgment and decree of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.