Tillman v. Brown

Watts, J. Com. App. One of the contested issues in the case was as to whether or not the house and lot upon which the attachment had been levied was at that time exempt from forced sale, by reason of its being the place where appellee exercised his calling or business as the head of a family. Appellee asserted this claim of exemption, and averred that notwithstanding he had sold to Johnson his stock of liquors, bar fixtures, etc., he still retained a portion of the building and continued his business of restaurant keeper therein. Appellant replied that in fact the only business conducted by appellee at the time of the seizure in the house was that of gaming. That he then kept a gaming establishment in the rear room of the building, and that the lunch stand was the merest pretext, and [184] simply kept for the purpose of protecting the property from forced sale for the payment of his debts. This issue was submitted to the jury upon the evidence adduced by the parties. The verdict was: “ We, the jury, find for the defendant, Harry Brown, that his place of residence was at Wichita Falls.” ' How it should be observed that there was no issue before the jurv as to the place of appellee’s residence, but the issue was as to his place of business, and the character of the occupation he was then pursuing. Obviously the verdict did not respond to the issue submitted, nevertheless the court in effect adjudged the property exempt from the operation of the writ of attachment. Appellant was undoubtedly entitled to a finding upon the issue made and submitted to the jury. , While the constitution accords protection to the place where the head of the family exercises his calling or business as such, it will not extend protection to a place in which the occupation followed is prohibited by the penal laws of the state. Gaming as defined by the code is prohibited. So, also, the keeping and exhibiting any gaming table or bank, for the purpose of gaming, is denounced as a misdemeanor and punished accordingly. And any person who permits any game prohibited by law, to be played in his house, or a house under his control, is guilty of a misdemeanor and punishable by fine. How if, as claimed by appellant, Brown was engaged in keeping and exhibiting gaming tables and banks for the purpose of gaming* in the house, and that was the real business or occupation in which he was engaged, then the constitution would not protect the property from forced sale. But, notwithstanding the appellee was engaged in gaming, still, if his real business or calling was that of restaurant keeper, that being a legitimate business, would entitle him to the constitutional protection. However, if the restaurant or lunch stand was but a pretext, as claimed by appellant, run but as a blind to shield the gaming, or run in connection with and as subsidiary to the gaming, or as part and parcel of its machinery, it would be doing violence to the spirit of the constitution to hold that the place would be protected from forced sale. Our conclusion is that the judgment ought to be reversed and the cause remanded. In view of another trial it should be remarked that the rule for [185] ascertaining the value of the oil painting claimed to have been wrongfully seized and sold is clearly stated in H. & T. C. R’y Co. v. Burke, 55 Tex., 343. Other questions presented are so well settled by adjudicated cases that it is not necessary to consider them. Reversed and remanded. [Opinion adopted May 29, 1885.]