Lindsey v. State, 2542.

• Decision Date: 19 April 1946
• Docket Number: No. 2542.,2542.
• Citation: 194 S.W.2d 413
• Court: Texas Court of Appeals
• Parties: LINDSEY et al. v. STATE.

194 S.W.2d 413

LINDSEY et al. v. STATE.

No. 2542.

Court of Civil Appeals of Texas. Eastland.

April 19, 1946.

Rehearing Denied May 17, 1946.

Appeal from District Court, Jones County; Owen Thomas, Judge.

Suit by the State of Texas, acting by and through the Texas Liquor Control Board, against Floyd H. Lindsey and others, to enjoin defendants from violating the Texas Liquor Control Act, Vernon's Ann.P.C. art. 666—1 et seq., in Jones county, and to padlock building in which named defendant was conducting his business as against all of the defendants. From an adverse judgment, all of the defendants, except Earl Profit Spencer, J. E. Watkins and wife, Ethel Watkins, appeal.

Affirmed.

Smith & Smith, of Anson, for appellants.

Grover Sellers, Atty. Gen., and J. F. Lindsey, Co. Atty., of Anson, for appellee.

GRAY, Justice.

This suit was filed by the State of Texas, acting by and through the Texas Liquor Control Board, in the District Court of Jones County, Texas, against Floyd H. Lindsey and wife as the owners of the Cut Rate Drug Store in Stamford, in said county, and against Jeff Davis, R. H. Schumacker and W. H. Plant, as the agents and employees of said owners, and against Earl Profit Spencer and J. E. Watkins and wife, Ethel Watkins, as the owners of the premises on which said drug store was situated, for the purpose of enjoining defendants Lindsey and wife and their said agents and employees from violating the Texas Liquor Control Act, Vernon's Ann.P.C. art. 666— 1 et seq., on the premises involved, and in Jones County, and to padlock said building as against all of the defendants.

The owners of the building and grounds on which it was situated waived citation, but filed no further pleading and did not appear at the trial. The other defendants appeared by attorney and pleaded res adjudicata by reason of a former judgment rendered in said court on November 16, 1940, in Cause No. 6905, styled The State of Texas vs. L. E. Osteen, Floyd H. Lindsey and Albert Davis, and by general denial.

The trial was to the court without a jury; the plea of res adjudicata was overruled, and judgment was granted as against all the defendants declaring said premises to be a common nuisance as defined by the Texas Liquor Control Act, and ordering the said nuisance abated and said premises closed and the building padlocked for a period of one year from date of final judgment, or until the statutory bond in the sum of $1500 be filed.

Personal injunction was denied as against defendants Floyd H. Lindsey and wife, and the owners of the property, but a permanent injunction was decreed as against defendants Jeff Davis and R. H. Schumacker from violation of Texas Liquor Control Act on said premises or elsewhere in Jones County, Texas, and as against W. H. Plant from violation of said Act anywhere within said county.

All of the defendants, except the owners of the realty, have appealed.

Appellants complain of the overruling of their plea of res adjudicata. Said original suit was numbered 6905, styled The State of Texas vs. L. E. Osteen, Floyd H. Lindsey and Albert Davis, in said District Court of Jones County, Texas, and the judgment was rendered on November 16, 1940, and permanently enjoined said defendants, and each of them, their agents, assigns, servants, subordinates, aides, employees, lessees and associates from violating said Liquor Control Act at 106 South Swenson Avenue in the City of Stamford, the property further described as Lot No. 12 in Block 23 of the original town of Stamford, Jones County, Texas. Said defendants were further enjoined and restrained from such violations in any way or manner within said Jones County. Defendants further pleaded numerous pleas of guilty to charges of contempt growing out of said injunction and satisfaction thereof.

The facts show that after said judgment was rendered and said building padlocked, said Floyd H. Lindsey abandoned same as a place of business and moved his Cut Rate Drug Store to a new and different location in Stamford, on West McHarg Street and being the west end of Lots 1 and 2, in Block 17, of the original town of Stamford, and being the premises involved in this suit. In the suit under review, L. E. Osteen and Albert Davis are not named as defendants, but the defendants are Floyd H. Lindsey and wife, as the owners, and Jeff Davis, R. H. Schumacker and W. H. Plant, as their employees, and Earl Profit Spencer, J. E. Watkins and wife as owners of the realty. It is apparent that there is no such identity as to parties, premises and subject matter as to constitute said former judgment a bar to the present suit. With reference thereto, the record contains this stipulation:

"It is further agreed and stipulated that none of the allegations of fact made in Plaintiff's petition in Cause No. 6905 are contained in this cause, No. 7506, and that Cause No. 7506 contains new and entirely separate allegations of fact as to violations affecting the defendant Floyd Lindsey."

Said stipulation would be equally applicable to the other defendants.

We overrule appellant's Point Five as to their plea of res adjudicata.

No oral evidence was introduced by either party, the case being submitted on stipulations brought forward as the statement of facts. It was further agreed that Jones County, Texas, in which said town of Stamford is located, was and is a dry area.

Appellants, defendants below, had filed a motion for continuance on account of illness of defendant Floyd H. Lindsey, who was unable to be present at the trial to testify, alleging that his testimony would be material to the defense of all the defendants. On said motion for continuance, the following stipulation was made:

"Now comes counsel for the State and counsel for the defendants and stipulate that if the witness, Floyd H. Lindsey, were present that he would testify that, as the owner and manager of the Cut Rate Drug Store, that inspectors of the Liquor Control Board, and Jack Miles of said Liquor Board made a search of the premises of the Lindsey Drug Store, being the same premises described in Plaintiff's petition, on or about the 3rd day of October, 1945, and that no liquor was found on the occasion of such search; that searches have been made since April, 1945, and that no liquor was found on said premises on the occasion of those searches; that if Floyd Lindsey were present he would testify as above stipulated and that such testimony would be true."

Upon the basis of said stipulation, both sides announced ready for trial, whereupon the State offered the following additional stipulation:

"The following additional stipulations are made between the parties, subject to the objections of the defendant as to its admissibility, that is, it is agreed that the following evidence, if admitted by the court, is true; and let the records show that this evidence is offered as rebuttal to the testimony of Floyd Lindsey (being the same testimony set forth above) heretofore stipulated between the parties in connection with the Court's consideration of the defendant, Floyd Lindsey's motion for continuance. (Here follows details of three purchases of liquor at said drug store by W. E. Russell, inspector for the Liquor Control Board, the first on August 23, 1945, from defendant E. J. or "Jeff" Davis, the second purchase from defendant R. H. Schumacker on August 25, 1945, and the third purchase from defendant E. J. or "Jeff" Davis on September 3, 1945.)"

Said additional stipulation was admitted by the court, over the objections of defendants, who allege errors, under Point One.

It will be borne in mind that said first stipulation related only to the matter of searches of the said premises, as a result of which, no liquor was found. The State made no admission whatever that sales of liquor were not being made therefrom, or that said premises were not a common nuisance as defined by the Liquor Control Act. The evident purpose of said rebuttal testimony was to show that notwithstanding the fact that searches had failed to find any liquor stored on the premises, sales of liquor were being made from said Drug Store up to within five days of the trial. Said facts justify the conclusion that liquor was hidden in such place as to be readily available when a sale was desired to be made. In the original stipulation, the State admitted nothing except that the searches as made proved fruitless, and we think there was no waiver of the right to prove actual continuing violations. Appellants contend, in effect, that the necessary implication was that there were no such violations, and that such nuisance had ceased to exist. We think that the only implication that could have been drawn was that no liquor was being stored on said premises for purposes of sale at the very time said searches were made, but no implication was permissible that would exclude any other violations.

The specific objections urged against said second stipulation by the defendants were (a) that there was no pleading to support the same, and (b) that it was in rebuttal of a prior stipulation. To the first objection, it may be stated that, "The modern tendency is toward greater liberality in the construction of pleadings in order not to require the retrial of a case when justice has been done, and the parties understood what the points in issue were, and the same were submitted to a court or jury." 33 Tex.Jur. p. 636, sec. 182; City of San Antonio...