The Pastime v. State

• Decision Date: 27 October 1917
• Citation: 197 S.W. 1089,138 Tenn. 315
• Parties: THE PASTIME ET AL. v. STATE EX REL. POWERS, CITY ATTY.
• Court: Tennessee Supreme Court

197 S.W. 1089

138 Tenn. 315

THE PASTIME ET AL. v. STATE EX REL.

POWERS, CITY ATTY.

Supreme Court of Tennessee.

October 27, 1917

Certiorari to Court of Civil Appeals.

Proceeding by the State, on the relation of J. Pike Powers, City Attorney of Knoxville, against The Pastime and others. Judgment against defendants was reversed by the Court of Civil Appeals, and relator brings certiorari. Judgment of Court of Civil Appeals reversed, and that of circuit court modified and affirmed.

J. Pike Powers, Jr., City Atty., of Knoxville, pro se.

WILLIAMS J.

A petition was filed by the state, on relation of J. Pike Powers, city attorney of Knoxville, to have declared a nuisance The Pastime, as a place of business for the sale of intoxicating liquor in violation of law, conducted by defendant Lester Rogers, where sales were alleged to have been made by defendant Newman. The owner of the building Patterson, was also made a defendant.

The allegations are those usually appearing in a petition filed under what is popularly known as the "nuisance act," referred to below.

The circuit judge and the Court of Civil Appeals were alike of opinion that, on the proof admitted by the former on the trial of the cause, a nuisance existed. But the appellate court entertained the view that the trial judge held certain testimony offered by the state to be competent that was not admissible; that the same was so material that reversible error was committed; and, further, that when that testimony was disregarded there was not a showing made that sufficed to sustain the judgment against defendants pronounced in the court of first instance. The judgment was therefore reversed and the relator has filed a petition for certiorari assigning error on said ruling.

The testimony so held to be incompetent by the appellate court followed testimony of witnesses in regard to the reputation of the place.

Testifying in behalf of the state, it was deposed as follows:

"Mr. Powers: What is the reputation of Lester Rogers, as to his line of business?

Mr. Houk (for defendants): You can't prove the reputation of the defendant; this is an action against the property; the evidence must be confined to the place, and not go to the person.

The Court: I overrule the objection.

Witness: He sells whisky, according to his reputation.

Mr. Houk: We note an exception to the question and answer."

The Court of Civil Appeals cites as authority for its ruling an excerpt from 7 Enc. Evidence, 751, to the effect that:

"Evidence of common reports that the defendant was engaged in the unlawful selling of liquor is incompetent."

This refers to a trial on an indictment for the misdemeanor of selling liquor illegally and to civil suits by private individuals for damages against the seller of liquors; and the rule is manifestly sound. But is it applicable in a proceeding triable according to the forms of chancery to suppress by injunction a selling of liquor at a place or stand as one of disorderly character?

Pub Acts of Second Extra Sess. 1913, c. 2 (Thomp. Shan. Code, § 5164a4), under which this action was brought, provides in section 5 that evidence of the general reputation of the place where the nuisance is alleged to exist shall be admissible for the purpose of proving or tending to prove the existence of such...