#### Josephine Brunswick v. H. P. Hurley.

Gen. No. 12,957.

1. Physician and surgeon-when license not essential to recovery of fees. The fact that a physician and surgeon is not licensed to practice in Illinois is not material where the action is predicated upon notes given for services rendered.

2. Judgment by confession-when will not he vacated. A motion to vacate a judgment by confession is directed to the conscience of the court, and will not he allowed for errors of law, but only where a defense upon the merits clearly appears from the affidavits admissible in support of such motion. Errors of law are waived by the letter of attorney in power of which the judgment is entered.

Judgment by confession. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.

Heard in this court at the March term, 1906.

Affirmed.

Opinion filed January 21, 1907.

Rehearing denied January 31, 1907.

Otto Gresham, for appellant.

Delavan B. Cole, for appellee.

Mr. Justice Holdom

delivered the opinion of the court.

The relation of physician and patient existed between the parties at the time of the transaction in controversy. Mrs. Brunswick, with her husband, went to the office of Dr. Hurley for treatment in October, 1905. A physical examination of Mrs. Brunswick by the doctor, at that time, disclosed that she was suffering from chronic endometritis with complications. In accepting Mrs. Brunswick as a patient for treatment, Dr. Hurley informed her that a surgical operation was necessary in order to effect a permanent cure, but consented to try and effect a cure without resorting to surgery. For a time such treatment was pursued, and while Mrs. Brunswick 7s health seemed to improve under the treatment, her condition was not satisfactory, and on November 20, *2361905, all parties concluded on a surgical operation for. Mrs. Brunswick. Thereupon there was some talk about fees between the doctor and Mrs. Brunswick and her husband, and finally the amount of the doctor’s fee was settled at $150. Bequests for payment on account were made of the husband of appellant, but he failed to respond. Appellee pressing for payments was informed by appellant, in effect, that her husband was financially irresponsible; that she was possessed of some property, and in receipt of an income of $50 a month from it, and she agreed to pay the fee in instalments by giving notes payable monthly, seven for $20 each and one for $10. The notes, in this record, were given upon the ev,e of appellant’s being taken to a hospital to undergo a surgical operation in an attempt to cure her from the afflictions from which she was then' suffering. There does not appear tó have been any talk between the parties as to the character of the n'otes to be given, but those in the record with power of attorney to confess judgment, were executed by appellant without objection on her part, and without any representation on the part of Dr. Hurley, or any other person, as to their character or effect, and while it undoubtedly is true that appellant was not strong at the time she signed the notes, the agreement to give notes in the amounts and payable at the times of those in the record was made some time before and between all the parties interested, including the husband of appellant. There is nothing in this record disclosing any arts practiced or subterfuges resorted to, to prevent appellant from scrutinizing the notes she signed, and fully informing herself as to their contents, and in these circumstances the law imputes to her knowledge of the import of her act in signing and delivering these notes in the way she did.

The operation was performed as agreed, and apparently with good effect, until for some reason, not *237appearing, the husband of appellant lost. confidence in appellee and put other medical men in charge of his wife’s case. Appellee, having no other alternative, withdrew from the case. These complications, it would seem from the record, were created by the husband without the connivance or consent of appellant. Appellee then caused a judgment to be entered upon the eight notes for. principal and attorney’s fees, amounting to the sum of $175. A motion made by appellant to vacate this judgment and recall the execution issued thereon being denied, this appeal was prayed.

The question here presented for our judgment is whether the denial by the trial court of the motion of appellant to vacate and set aside the judgment and recall the execution issued thereon from the sheriff was an abuse of sound judicial discretion.

The gravamen of the charge against appellee in the motion and affidavits filed, seems to be that he is a “tramp doctor,” but upon what such charge is based is vague and wholly without force or relevancy, as it does not appear that his ability as a surgeon was affected by his being a “tramp doctor,” or that he had been guilty of malpractice toward appellant either in his medical treatment of her or in the surgical operation upon her. It does appear, however, that appellee is a registered physician" in several states, and has practiced his profession at times in the States of Ohio, Michigan and Illinois, but nothing in the affidavits filed affect in any degree his reputation or character as such practitioner. There is no fact stated in any of the affidavits filed from which a conclusion can be drawn that the medical or surgical services rendered by appellee for appellant, were unskilful and- not in accordance with approved methods governing like cases. There" is no merit in the defense challenging the efficiency of the service rendered as the consideration for the notes given. There is no fact stated in any of the affidavits affect*238ing the character, of the Lincoln Park Hospital as not being a snitable and proper place in which to operate npon, nurse and treat appellant or any other person suffering in like manner, and certainly no fact stated which brings home knowledge to appellee that the Lincoln Park Hospital was not entirely suitable and a proper institution in which to place and treat appellant at the time he advised her to become an inmate.

The tiierits of the case’ disposed of leaves the principal question raised, that the appellee was not, at the time of rendering the service to appellant, a duly • licensed practitioner of medicine and surgery under a certificate issued by the State Board of Health, and filed with the county clerk, as required by the statutes of this state.

In the first place, we think the question arises collaterally and is immaterial. The suit was not for fees for services rendered as a physician and surgeon. The fee question had been settled by the giving of the notes. The services for which the notes were given had been rendered at the time of entering the judgment. It would not be necessary on a trial under issue joined for appellee in the first place to give any evidence other than the notes, to entitle him to recover. If the question was a material one, it was the subject of defense, although there is abundant evidence in this record that appellee was a physician and surgeon.

This court held in Good v. Lasher, 99 Ill. App. 654, in the case of a dentist, who is likewise required to be licensed by a similar statute before he is qualified to practice dentistry, that where the question of license arises in a civil action, between the dentist and his patient, it is collateral and that the license and due qualification to practice will be presumed; and on page 655 quoted with approval from the opinion, of Mr. Justice McAllister in Williams v. People, 20 Ill. App. 92, as follows: “Where the question of *239a license or qualification of a physician arises collaterally in a civil action between party and party, or between the doctor and the one who employed him, then the license or due qualification under the statute will be presumed.” This is controlling here.

To a similar effect is N. C. St. Ry. v. Cotton, 140 Ill. 486, where the question arose collaterally, as we hold it does in the case at bar.

Furthermore, the excluded affidavit of Gresham does show that appellee’s certificate from the State Board of Health licensing him to practice as a physician was dated September 1, 1905, prior to the date when the surgical operation was performed upon appellant, but as to how long Hurley received it before filing it with the county clerk, December 4, thereafter, the record is silent.

A motion to vacate a judgment by confession is directed to the conscience of the court, and will not be allowed for errors of law, but only where a defense upon the merits clearly appears from the affidavits admissible in support of such motion. Errors of law are waived by the letter of attorney in power of which the judgment is entered. Blake v. State Bank of Freeport, 178 Ill. 152; Mumford v. Tolman, 157 Ill. 258, affirming this court in same case, 54 Ill. App. 471; Georgen v. Schmidt, 69 Ill. App. 538.

The setting aside of a judgment by confession rests in the sound discretion of the court. Blake v. State Bank of Freeport, supra.

The record fails to disclose facts from which we are able to say .that the order denying the motion of appellant to vacate the judgment was an abuse of the sound discretion reposed by law in the trial judge, and the judgment of the Circuit Court will be affirmed.

Affirmed.