Texas State Bd. of Examiners in Optometry v. Lane

• Decision Date: 22 June 1962
• Docket Number: No. 16342,16342
• Citation: 358 S.W.2d 636
• Parties: TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY, Appellant, v. Sidney H. LANE, Appellee.
• Court: Texas Court of Appeals

Page 636

358 S.W.2d 636

TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY, Appellant, v. Sidney H. LANE, Appellee.

No. 16342.

Court of Civil Appeals of Texas, Fort Worth.

June 22, 1962.

Rehearing Denied July 13, 1962.

Will Wilson, Atty. Gen., and John Reeves, Asst. Atty. Gen., Austin, for appellant.

Wynne, McKenzie, Stroud, Jaffe & Tinsley, Carl W. Wilson and Morris I. Jaffe, Dallas, for appellee.

MASSEY, Chief Justice.

In Texas State Board of Examiners in Optometry v. Lane, Tex.Civ.App.1960, 337 S.W.2d 801, error refused, we held that a judgment which inadvertently dismissed a suit pending on the docket of the District Court of Tarrant County (as an appeal taken from an order of the State Board suspending Dr. Lane's license to practice optometry), was a final judgment.

After the Supreme Court acted on the writ of error applied for by Lane, he pursued a remedy by way of an action for bill of review in the District Court. Ancillary thereto he sought and obtained a temporary injunction which would preserve his right to practice optometry until he had obtained a trial of the bill of review. We held that Lane was entitled to the injunction so obtained in Texas State Board of Examiners in Optometry v. Lane, Tex.Civ.App.1961, 349 S.W.2d 763.

Thereafter the parties tried Lane's suit by way of bill of review. By the judgment entered in said case the prior judgment of dismissal was set aside, the order of the State Board suspending Dr. Lane's license to practice optometry was cancelled, and the State Board was required to accept the license fee tendered to it by Lane and to grant him the renewal certificates requisite to the practice of his profession. From this judgment the State Board appealed.

Judgment affirmed.

The actual question presented by the appeal is whether Lane has shown himself entitled to maintain his action for bill of review. From our perusal of the record we are of the opinion, and so hold, that Lane was entitled to prevail on the merits of the case if he has shown himself entitled to maintain the action. Under our decision in State Board of Examiners in Optometry v. Marlow, Tex.Civ.App.1953, 257 S.W.2d 761, the case was to be tried in the application of a test to the Board's order in a determination of whether it had reasonable support in substantial evidence introducted before the trial court. It was so tried, and the State Board failed to demonstrate that the order suspending Dr. Lane had support in substantial evidence (introduced upon the trial of the case). We are further of the opinion, and so hold, that Lane has shown that the judgment of dismissal did not result because of any fault or negligence on the part of his attorneys or himself.

The answer to the actual question in the appeal is therefore made to depend upon whether the judgment of dismissal, subject of Lane's complaint, was not only wrongful and erroneous but furthermore was attended by circumstances which justified equitable relief against its enforcement.

The case was tried on Lane's third amended original petition, in which it is alleged that the entry of the judgment of dismissal occurred as the result of an error of the trial...