Cates v. Jones, 12807.

• Decision Date: 08 April 1939
• Docket Number: No. 12807.,12807.
• Citation: 129 S.W.2d 476
• Parties: CATES v. JONES, Chief of Police, et al.
• Court: Texas Court of Appeals

Page 476

129 S.W.2d 476

CATES v. JONES, Chief of Police, et al.

No. 12807.

Court of Civil Appeals of Texas. Dallas.

April 8, 1939.

Rehearing Denied May 13, 1939.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by Wayne Cates against Robert L. Jones, Chief of Police, and others, to restrain defendants from invading plaintiff's premises and seizing marble machine. From a decree dissolving restraining order theretofore granted and denying plaintiff's prayer for a temporary injunction, the plaintiff appeals.

Appeal dismissed.

Hughes & Monroe and P. P. Ballowe, all of Dallas, for appellant.

H. P. Kucera, City Atty., and A. J. Thuss and J. Manuel Hoppenstein, Assts. City Attys., all of Dallas, for appellees.

E. G. Moseley, Civil Dist. Atty., and Harold McCracken, Asst. Dist. Atty., both of Dallas, amici curiæ.

LOONEY, Justice.

Wayne Cates, appellant, appealed from an order of the district court, denying a temporary injunction. Appellant alleged that he owned and operated the Hilton Hotel Drug Store, located in the Hilton Hotel at the corner of Main and Harwood Streets in the city of Dallas, in which he sold drugs, drug sundries, toilet articles, cigars, tobaccos, etc., and, as an advertising medium, installed in the store and electrically operated machine for the amusement of customers and persons waiting around his store, the machine being in the form of a table on four legs, about 2 feet wide and 2½ feet long, the top covered with glass, and immediately beneath the glass was a circular steel disc, about 18 inches in diameter, which formed the playing board, or field of the machine, which was operated by dropping a nickel in a slot that automatically released six steel balls, and, by the manipulation of plungers, the balls, one at a time, were forced out onto the playing field, and, by chance, could find lodgment in one of the ten holes located around the metal disc; the entrance of a ball in a hole registered a number at the top of the board, electrically illuminated, and, when all the balls were played and at rest, the aggregate of these numbers indicated the score made. The machine and its operation were described at great length by appellant, but he strenuously denied that it was designed or could reasonably be used for gambling purposes, and was not operated for that purpose; and was valuable only as an advertising medium, in that, it induced good will by the pleasure and enjoyment it afforded.

Appellant also alleged that Robert L. Jones, appellee, Chief of Police of the City of Dallas (and his subordinates), was threatening to invade plaintiff's premises and illegally seize said machine, thus visiting an irreparable damage upon appellant by depriving him of the machine and disrupting this feature of his business; alleged the necessity for the issuance of an order, without notice or hearing, restraining appellees from molesting the machine or forcibly taking it from the premises; prayed for a show cause order, that the application for temporary writ be set down for hearing, that the same issue, and, on final trial, that the injunction be made permanent.

On October 1, 1938, without hearing or notice, the court granted the restraining order, and set the hearing for October 15. The language of the restraining order reveals the nature of the relief sought, as follows: It reads: "Now, therefore, you, the said Robert L. Jones, Chief of Police, your Counselors, Solicitors, Attorneys, Agents, Servants and employees are hereby commanded to desist and refrain from and desist from removing or seizing said machine and dispossessing plaintiff thereof; said machine located in Hilton Hotel on Main & Harwood Streets, in the Hilton Hotel Drug...