Kieffer v. Keough

• Decision Date: 09 June 1916
• Docket Number: (No. 7188.)
• Citation: 188 S.W. 44
• Parties: KIEFFER v. KEOUGH.
• Court: Texas Court of Appeals

188 S.W. 44

KIEFFER v. KEOUGH.

(No. 7188.)

Court of Civil Appeals of Texas. Galveston.

June 9, 1916.

Rehearing Denied June 29, 1916.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by John Kieffer against E. T. Keough. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

W. E. Monteith, of Houston, for appellant. Cooper & Merrill, of Houston, for appellee.

LANE, J.

For a statement of this case we here adopt the findings of fact filed by the trial court, together with such additional statements as is necessary to make said statement complete, as follows:

Some time prior to February 1, 1912, and ever since said date, John Kieffer, the defendant, has been the proprietor and manager of a rooming house called Hotel Stratford, situated in the city of Houston, Harris county, Tex., at No. 414 Fannin street. Between February 1, 1912, and October 1, 1912, defendant's principal business as proprietor and manager of said house was renting furnished rooms to guests by the day, week, or month, furnishing the occupants of said rooms bell-boy service, lights, water, heat, and phone service, taking laundry for guests and sending it out for them and paying the bills when it was returned, charging same to the guests of the respective rooms. At said time defendant had eight or ten unfurnished rooms, which he rented unfurnished when tenants could be secured, and during said time defendant had a fixed rate for each class of accommodation, a certain rate for certain rooms by the day, week, or month furnished, and certain rate for unfurnished rooms, and the rate charged the plaintiff was the usual rate charged guests for unfurnished rooms. On or about February 1, 1912, for a consideration of $30 per month, the defendant rented plaintiff, upon a monthly rental, certain of said unfurnished rooms for housekeeping purposes, with all the other conveniences, rights, and privileges of guests occupying the furnished rooms of said house, and a few days afterwards plaintiff, who was then and is now a married man, moved into said rooms with his wife, and continuously occupied and used same as living and housekeeping rooms for himself and wife until about the 1st day of October, 1912. Plaintiff and his wife, during his occupancy of said rooms, furnished same at their expense with suitable household furniture and furnishings for housekeeping purposes, and all of said household furniture and furnishings on the several dates inquired about herein belonged to the plaintiff, E. T. Keough, except the piano, sewing machine, bedding, and linens which then and now belong to plaintiff's wife as her separate property, having been acquired by her before her marriage to the plaintiff. Upon leaving said property and premises on or about October 1, 1912, plaintiff was indebted to the defendant in the sum of $82.50 for room rent and laundry bills. Plaintiff at this time attempted to move the said furniture and belongings of himself and wife, but was forcibly prevented from doing so by the defendant, who has ever since retained and held the same, claiming a hotel keeper's lien thereon to secure the said sum of $82.50 due as aforesaid. During none of the times or dates mentioned herein did the defendant in the conduct and management of said house serve meals or refreshments of any kind to his guests. The plaintiff and his wife are the owners of all the property sued for and described in the trial pleadings of the plaintiff, and the defendant is forcibly holding and retaining the same, claiming a hotel keeper's lien thereon to secure said $82.50. Appellant's hotel was advertised and maintained as an European plan hotel. It had a sign across its door and in front of its main entrance, to wit, Stratford Hotel. It was held out to the public generally by its proprietor as a hotel for guests. It was conducted and maintained like other European plan hotels were conducted and maintained. A hotel clerk was employed who kept a regular hotel register of all guests, and all guests who applied for accommodation were received to the capacity of said hotel. The lien asserted by appellant upon said property was, by virtue of article 5663, Vernon's Sayles' Statutes, which provides that:

"Proprietors of hotels and boarding houses shall have a special lien upon all property or baggage deposited with them for the amount of the charges against them or their owners if guests at such hotels and boarding houses."

On the 29th day of September, 1914, E. T. Keough filed his petition before A. R. Hamblen, judge of the Eleventh district court of Harris county, in which he alleged that appellant, Kieffer, was doing business under the name of the Stratford Hotel, that he was a married man, the head of a family, and that the property in question was and is his household furniture and exempt from forced sale, etc., and, further, that appellant was unlawfully withholding said property from him. He prayed for a mandatory injunction to compel appellant to restore to him said property, and for the possession of the same, and that in the event said property could not be recovered, he have judgment against appellant for $1,000, the alleged value of the same. Appellant answered, setting up the facts as found by the court, and also set up his lien and prayed for its establishment by the court. The cause was tried before the court without a jury, who rendered judgment, refusing the alleged lien, and in favor of appellee, Keough, for the title and possession of the property sued for, and awarding a writ of possession and mandatory injunction prayed for, commanding appellant to forthwith deliver to appellee, Keough, the property in question. From such judgment John Kieffer has appealed.

The trial court filed his findings of facts as set out in the first part of this opinion, and has filed the following conclusions of law:

"I conclude as matter of law that the kind of house the defendant was running was not a hotel or boarding house within the purview of the statute giving such persons a lien upon the effects of guests for their charges, and was not an inn or tavern at common law, and that he is not therefore entitled to any lien on the property or chattels of the plaintiff now in his possession, and that the plaintiff for himself and wife is entitled to recover the possession thereof."

Appellant presents two assignments of error by which he contends that the trial court erred in concluding that the evidence shows that the Stratford Hotel was not a "hotel or boarding house" as these terms are used in article 5663, Vernon's Sayles' Statutes, and in rendering judgment for appellee upon such conclusion. Appellee's contention is that said Stratford Hotel is a lodging house, and not a "hotel or boarding house" as those terms are used in said article 5663, and therefore appellant had no lien on his household goods deposited in the rooms of said hotel, while appellant's contention is that said hotel is a "hotel" as that term is used by said statute. These contentions constitute the matter presented for our decision. If the Stratford Hotel was, at the time E. T. Keough and wife began the occupancy of some of its rooms, under the terms and conditions as shown by the evidence, a "hotel or boarding house," as these terms are used in said article 5663, and continued to be such until they left the same, and they occupied said rooms as guests of said hotel, the property in question is subject to the lien asserted by appellant, Kieffer. It follows then that the important and controlling questions are: First, was the Stratford Hotel a "hotel or boarding house" as those terms are used in said...