DOWNS vs. MINCHEW

DOWNS vs. MINCHEW. [ACTION ON ACCOUNT FOR MEDICAL SERVICES — NONSUIT.] 1. Exception andnonsuit.- — Where the judgment entry recites, that “the plaintiff excepted to the ruling of the court, and takes a nonsuit,” it sufficiently appears that the nonsuit was taken on account of the adverse ruling of the court. 2. Statute prohibiting recovery for services by unlicensed physicians. — The statute of this State, prohibiting a recovery for medical services rendered by' an unlicensed physician, (Code, § 977,) does not prevent a recovery here for services rendered in another State; nor can our courts presume that a similar statute exists elsewhere. e, Appeal from the Circuit Court of Coffee. Tried before the Hon. C. W. BapieR. This action was founded on an open account for medical services rendered by the plaintiff, as a physician, in the State of Texas. Notice was served on him, that his license to practice medicine as a physician would be required on the trial; but he produced no license. There was no proof that the laws of Texas required a physician to have a license or diploma. On these facts, the court instructed the jury, that the plaintiff could not recover; to which charge the plaintiff excepted, and took a nonsuit. The judgment entry recites, that “the plaintiff excepted to the ruling of the court, and takes a nonsuit.” The charge of the court is now assigned as error. Jas. L. Pugh and E. C. Bullooe, for appellant. Watts, Judge & JaoesoN, contra. [MAJORITY — STONE, J.] STONE, J. It is argued for the appellee, that the record fails to connect the nonsuit with the rulings of the primary court. We think the principle to be extracted from our decisions is, that if the record establishes the fact that the decision below was the cause of the nonsuit, and that the party excepted with a view to a revision by this court, the statute is complied with. — Code, § 2357; Shields v. Byrd, 15 Ala. 818; Tate v. McCrary, 21 Ala. 499; Duncan v. Hargrove, 22 Ala. 150. The question here presented has been, in effect, decided adversely to the views of the appellee. — See Duncan v. Hargrove, supra; Blackburn v. Minter, 22 Ala. 613. We therefore hold, that the appellant has sufficiently reserved the question decided adversely to him, to justify us in considering it. The charge of the circuit court cannot be vindicated. The disability under which physicians labor who practice without license, is purely statutory. — See Code, §§ 977-8. Our statutes cannot operate upon such contracts made, or services rendered, without the limits of the State; neither can we presume that the State of Texas has enacted a law similar to our own. The judgment of tbe circuit court is reversed, tbe non-suit set aside, and tbe cause remanded.