
    BOARD OF MEDICAL EXAMINERS, Respondent, v. KELLOGG, Appellant.
    [Submitted March 6, 1894.
    Decided March 19, 1894.]
    Physicians and Surgeons—Revocation of license—Stay of proceedings.—The refusal of the trial court to stay proceedings upon an appeal from a judgment revoking the license of a physician to practice his profession will not be disturbed on appeal in the absence of an abuse of discretion; nor will this court in such case upon motion stay the operation of such judgment pending review on appeal.
    
      Appeal from, First Judicial District, Lewis and Clarice County.
    
    Action by board of medical examiners to revoke the license of a physician. On motion for an order fixing supersedeas bond and staying operation of the judgment pending an appeal.
    Denied.
    
      T. J. Walsh, and J. W. Kinsley, for Appellant.
    
      C. B. Nolan, and Blake & Penwell, for Respondent.
   Per Curiam.

In this case appellant moves this court for an order fixing ¡the amount and conditions of bond to be executed by appellant and sureties in behalf of a stay of proceedings on, and superseding the operation of, the judgment of the trial court, and asking that, on the execution, approval, and filing of such bond, this court make such an order staying the operation of the judgment pending review on appeal.

By the judgment of the trial court, appellant’s license to practice medicine as a physician aud surgeon in this state is revoked aud annulled, with judgment for costs of prosecution. Therefore, by the effect of such judgment, appellant stands in the attitude of one seeking to practice medicine in this state, but without license so to do; and the act of practicing medicine without license is by statute made a criminal offense, punishable by fine or imprisonment, or both. The effect sought by an order to stay proceedings on the judgment below, in so far as the same regards enforcement of costs, is consummated by the cost bond upon an appeal; but the further effect sought by such order is to license or permit appellant to continue the practice of medicine, notwithstanding the revocation of his license, until review and final determination of the appeal by this court. Whether such an order staying proceedings on-the judgment, as sought, would stay the operation of the statute against one practicing medicine without license, and shield him from the prosecution and penalty therefor, especially if the judgment revoking his license be affirmed, is a question of grave importance, which would arise directly for determination in the event of such a prosecution, and which, in this collateral presentation, we do not feel at liberty to determine, as within the purview of this motion. Aside from that view, it appears application was made to the trial court to stay proceedings in relation to the judgment pending the appeal, and such stay was refused. Considering that a stay of such a judgment would be a matter of discretion in the trial court there is nothing shown in this proceeding, at this time, which would lead this court to order the contrary, on the ground that such discretion had been abused.

An order will therefore be entered overruling the motion.  