Gollehon v. Porter, 5399.

• Decision Date: 02 March 1942
• Docket Number: No. 5399.,5399.
• Citation: Gollehon v. Porter, 161 S.W.2d 134 (Tex. App. 1942)
• Parties: GOLLEHON et al. v. PORTER.
• Court: Texas Court of Appeals

Page 134

161 S.W.2d 134

GOLLEHON et al. v. PORTER.

No. 5399.

Court of Civil Appeals of Texas. Amarillo.

March 2, 1942.

Rehearing Denied April 6, 1942.

Second Motion for Rehearing Denied April 27, 1942.

Appeal from Garza County Court; J. Lee Bowen, Judge.

Action for rent by B. H. Porter against Milton Gollehon and another. From the judgment, the defendants appeal.

Partly affirmed and partly reversed and rendered.

Joe S. Moss, of Post, for appellants.

T. L. Price, of Post, and Crenshaw, Dupree & Milam, of Lubbock, for appellee.

STOKES, Justice.

This suit was filed by appellee, B. H. Porter, against appellants, Milton Gollehon and R. G. Gollehon, to recover delinquent rentals on a building owned by Porter and located at Post in Garza County. Appellee set up his landlord's lien on certain personal property consisting of five pool tables, three snooker tables and other equipment used by appellant, Milton Gollehon, in operating a pool hall in the building. The rentals alleged to be due and unpaid had accrued for the months of August, 1940, to February, 1941, inclusive. On February 26, 1941, appellant, Milton Gollehon, vacated the building and removed all of the personal property and equipment therefrom, and on the 8th of March, 1941, appellee sued out a distress warrant in the justice court which was levied upon the property and returned, as directed, to the county court. In due time appellee filed his petition and the case was tried on June 13, 1941, before the court without the intervention of a jury. The trial resulted in a judgment in favor of appellee and against appellants for $350., together with foreclosure of appellee's landlord's lien. Appellants duly excepted to the judgment, gave notice of appeal and present the case in this court upon a number of assignments of error. The controlling issues presented by the brief are encompassed in appellants' contentions that the court erred, first, in rendering judgment against them because the premises, with the knowledge and consent of appellee, were leased and used for the purpose of operating a pool hall in violation of the law; secondly, that error was committed by the court in overruling their motion to quash the distress warrant and bond upon grounds which will hereinafter be mentioned; and, thirdly, that error was committed in rendering a summary judgment against the sureties on the replevy bond because it was not a statutory bond.

Under their first contention, appellants assert that appellee was in pari delicto with them in the operation of the pool hall, which they allege, and the evidence shows, was at all times being operated in violation of Articles 4668, R.C.S. 1925, and Article 653 of the Penal Code. The trial court found that appellee did not aid, assist or abet appellants in any way in the operation of the business in his building; that he had no knowledge at any time that any illegal business was being operated therein; but that he believed at all times that the business being operated by appellant, Milton Gollehon, under the trade name of Garza Club for Ladies and Gentlemen was being operated in a legal manner. These findings are amply supported by the testimony in the case. The law is well settled that where two persons are guilty of participating in an unlawful transaction, neither a court of law nor a court of equity will aid either to recover upon any alleged rights which may have accrued to him thereunder but will leave the parties in the condition in which it finds them and in which they have placed themselves. The statutes referred to do not inhibit the possession or use of pool tables and equipment. Article 653 of the Penal Code denounces the operation or maintenance of a pool hall as that term is defined by the laws of the State. The definition is found in Article 4668, R. C.S.1925, and is "any room, hall, building or part thereof * * * in which are exhibited for hire, revenue, fees or gain of any kind, or for advertising purposes of any kind, any pool or billiard table or stand or structure of any kind or character on which may be played pool or billiards, or any game similar" thereto. Appellant, Milton Gollehon, testified that he operated the business under the name of Garza Club for Ladies and Gentlemen, but his testimony shows very clearly that, instead of being a social club as its name indicates, it was nothing more nor less than an ordinary pool hall in which he exhibited his tables and permitted their use in consideration of certain fees and charges. It is further shown that appellee knew the pool hall equipment was located in the building and that he played at least one game of pool therein. The testimony is uncontroverted, however, that he did not pay any fee or charge for this game and that he did not know appellant, Milton Gollehon, was making or collecting any charges or operating the establishment in any manner that would make it a violation of the law. As we have said, there is ample evidence in the record that appellant, Milton Gollehon, was operating the pool hall in violation of the law, but there is no evidence which raises the issue that appellee knew he was doing so. The gravamen of the statutory inhibition is the operation of such an establishment for hire, revenue, fees or gain of some kind, or for advertising purposes. There is no showing that any articles of merchandise were maintained in the building for sale, and since it is not shown that appellee knew the place was being operated in violation of the law, it can not be said he was in pari delicto. Appellants' assignments of error raising this question will therefore be overruled. Eckles v. Nowlin et al., Tex.Civ.App., 158 S.W. 794; Carrell v. Laird, Tex.Civ.App., 53 S.W.2d 323; Countee v. State, 119 Tex. Cr.R. 131, 44 S.W.2d 994; Allen v. State, 122 Tex.Cr.R. 4, 53 S.W.2d 481; McCombs et al. v. State, Tex.Civ.App., 48 S.W.2d 665.

The next contention made by appellants is that the court erred in refusing to quash the distress bond and warrant in the distress proceeding. The grounds upon which they sought to suppress the bond and writ were that the bond did not obligate the plaintiff in the case to pay any damages that appellants might sustain in case the distress warrant had been illegally and unjustly sued out, and that the distress warrant was issued after the property was removed from the building. The bond obligated "B. H. Hunter" as principal and the other signers as sureties to pay such damages as appellants might sustain in case the distress warrant was illegally and unjustly sued out. The record shows that the given name of appellee was "Hunter." The bond is styled B. H. Porter v. R. G. Gollehon and Milton Gollehon, and it is stated in the bond that B. H. Porter is the principal therein. It is evident that the insertion of the name Hunter instead of Porter at one place in the bond was merely a typographical or technical error. The bond is amply sufficient to show that B. H. Porter, the plaintiff in the case, was the principal in the bond, and that the others were sureties. We find no merit in this contention of appellants. La Force v. Wear-Boogher Dry-Goods Co., 8 Tex.Civ.App. 572, 29 S.W. 75.

The record shows that the distress warrant was not sued out until some ten or twelve days after appellants had removed the property from the building. The court found that the building was vacated without appellee's knowledge or consent and upon learning that it had been vacated he sued out the distress warrant. Article 5239, R.C.S.1925, provides that a distress warrant may issue when any rent shall become due or the tenant is about to remove from such leased or rented building or remove his property therefrom. Appellants contend that the wording...