City of Ferguson v. Nelson

• Decision Date: 10 March 1969
• Docket Number: No. 2,No. 53434,53434,2
• Citation: 438 S.W.2d 249
• Parties: CITY OF FERGUSON, Respondent, v. Edward J. NELSON and Dorothy J. Nelson, Appellants
• Court: Missouri Supreme Court

Page 249

438 S.W.2d 249

CITY OF FERGUSON, Respondent, v. Edward J. NELSON and Dorothy J. Nelson, Appellants.

No. 53434.

Supreme Court of Missouri, Division No. 2.

March 10, 1969.

Carleno & Nick, Ferguson, for respondent-plaintiff, City of Ferguson.

Lester W. Duggan, Jr., O'Fallon, for appellants.

HENRY I. EAGER, Special Commissioner.

This appeal arises out of proceedings against the defendants for violations of ordinances of the City of Ferguson. They were found guilty and appealed. The circuit court also found them guilty and imposed fines; later, by nunc pro tunc entry, it added provisions for imprisonment. This appeal was taken after the latter order was made. We shall need to state the facts more specifically.

The residence of defendants was on a corner lot; its front faced Robert Avenue on the south, while its left side faced Elizabeth Avenue on the east. On or about May 7, 1965, defendants constructed a chain link fence 42 inches high extending from about the southeast corner of the house east to within 6 feet of the property line on Elizabeth Avenue, thence northerly along Elizabeth Avenue to the rear part of the lot, and thence westerly into the interior of the lot. The material point is that the fence was erected and maintained on a line along Elizabeth Avenue from 4 1/2 to 6 feet from the property line. The ordinances in question were and are parts of Ferguson's Zoning Law; they were then designated as Sections 32--17, 32.7 and 32.1. Essentially (so far as we are concerned) they provided that a corner lot should be considered as having a front yard of not less that 30 feet on each street, that no accessory building should protrude beyond that line and that no fence should be constructed within any such 'required front yard.' A 'fence' was defined in detail, and exceptions were made for open mesh fences enclosing 'an institution, a public park,' or any of certain other public or commercial uses. Defendants had previously applied, in June, 1963, for a permit to build the fence and their application had been denied by the Director of Public Works. On appeal from that denial the Board of Adjustment had upheld the order after a hearing, and no further review was sought.

On May 25, 1965, a complaint was filed charging defendants with the erection of the fence; on June 2, 1965, a series of 26 additional complaints were filed; each charged defendants with unlawfully maintaining the fence on a designated date between May 9, 1965 and June 2, 1965. The cases were all consolidated and heard in the Municipal Court on June 24, 1965, on pleas of not guilty; the court found defendants guilty on all complaints and assessed their punishment at a fine of $10.00 on each separate charge, for a total of $270.00. No reference was made to any imprisonment. Defendants duly appealed all the charges to the Circuit Court. The appeals were there designated as two cases, but they were consolidated for trial.

On March 29, 1966, and prior to the Circuit Court hearing, defendants filed Motions to Dismiss in each case. In addition to other objections, they alleged that the ordinances violated sundry constitutional rights, including due process, the provision against the taking of property for public use without compensation, and the right of equal protection. For reasons which will be apparent later, we shall not elaborate upon those allegations. Defendants also filed a motion to stay the proceedings on account of the pendency of a suit which they had filed in equity seeking a review of the action of the Board of Adjustment. The court heard the whole matter upon stipulations and exhibits. At the conclusion of the hearing the court noted that if it became 'pertinent' the defendants would later offer evidence in support of their claim that the City had not enforced the ordinance uniformly, and that the City would then be permitted to offer 'rebuttal evidence.' This hearing was held on March 30, 1966 and the causes were then taken under advisement.

On January 16, 1967 the Circuit Court entered its judgment in each of the two cases; it found defendants guilty on each complaint and assessed a fine of $10.00 on each; in each cause it assessed interest at 6% 'from this date' and it also assessed the costs against defendants and granted a stay of execution for 10 days. In each judgment it was ordered that plaintiff 'have and recover of said defendants' the appropriate sums. No reference was made to imprisonment in either judgment, nor was any reference thereto made at the hearing or at any place in the record prior to the judgments.

Defendants filed detailed motions to set aside the judgments, or for a new trial, or to reopen the judgments and hear evidence. These motions were overruled on March 10, 1967, counsel for defendants having agreed by letter that they be submitted without argument. No appeal was taken within ten days thereafter. On July 12, 1967 the City filed its motions (one in each cause) to correct the judgments of January 16, 1967 nunc pro tunc by adding thereto the following: 'That on default of the payment of the fine and costs the defendants shall be imprisoned in jail until discharged in due course of law.' The motions asserted that § 546.830, RSMo 1959, V.A.M.S. 'directed and provided for' such imprisonment upon failure to pay the fines imposed, and that the fines had not been paid; also that no appeal had been taken from the original judgments.

On September 25, 1967 defendants filed in this court their application for leave to file notice of appeal out of time from the original judgments of January 16, 1967. That application was denied on October 9, 1967 as 'not timely filed.' On October 23, 1967 the Circuit Court sustained the motions of the City for nunc pro tunc orders and entered in each case an amended judgment assessing the same fines and interest, assessing 'one half costs against each defendant,' and adding to each of the prior judgments the following: 'If said fine and costs are not paid within said ten days, the said defendants may be imprisoned until said fine and costs are paid, and one day for each $5.00 of said fine and costs assessed as aforesaid, or until said defendants be otherwise discharged by due course of law.' In the second case the word 'fines' was substituted for 'fine.' On October 30, 1967, defendants filed a notice of appeal in the consolidated causes in which they purported to appeal from the judgments entered on the 16th of January 1967, and the amendments of October 23, 1967.

The claim of jurisdiction in this court is based solely on the fact that questions of constitutional construction are presented. Defendants rely on their presentation of such questions in their Motions to Dismiss filed in the Circuit Court and the preservation of such questions thereafter. The City says that there was no timely appeal from the original judgments, that the application for an untimely appeal was denied in this court, and that the only question properly on appeal is the propriety of the nunc pro tunc orders of October 23, 1967. Further, it says, the making of the nunc pro tunc orders did not extend the time for appeal, and that no constitutional questions are preserved.

The first question which we must consider, although on our own motion, is whether the defendants waived the constitutional questions by not raising them affirmatively in the municipal court. Our court has said many times that constitutional questions must be raised at the earliest opportunity consistent with good pleading and orderly procedure, and thereafter preserved at all stages. State v. Brookshire, Mo., 325 S.W.2d 497; State v. Johnstone, Mo., 335 S.W.2d 199; State v. Meiers, Mo., 412 S.W.2d 478. We have not held, so far as we have found, that such questions must be raised affirmatively in a municipal or police court, although that practice is sometimes followed. Kansas City v. Hammer et al., Mo., 347 S.W.2d 865. No pleadings are required there, such matters are tried de novo on appeal, and many of our municipal judges are not lawyers. Under these circumstances we hold that there was no waiver. Defendants did file extensive motions to dismiss in the Circuit Court raising the various constitutional questions. In City of Frankford v. Davis, Mo.App., 348 S.W.2d 553, the court noted in holding that no constitutional issues were involved, that the question had not been raised either in the police court or the circuit court, but that is not our situation. We hold here in any event, that the constitutional questions were not so waived.

We are still confronted with the question of whether the issue of the constitutionality of the ordinances is still in the case in view of the failure to appeal from the original judgments. In order to determine this we shall be required, of necessity, to determine the validity and effect of the nunc pro tunc orders and judgments of October 23, 1967. It is conceded that a timely appeal was taken from those orders. In this connection we note that the City insists that those proceedings and orders constituted separate and independent cases, and that the entry of the new judgments did not extend the time for appeal from the original judgments. Counsel for the City thus cite: 21 C.J.S. Courts § 227, p. 427; Pierce v. Ellis, 92 Ind.App. 445, 176 N.E. 31, and Mayer v. Haggerty, 138 Ind. 628, 38 N.E. 42. This may be true, but the point becomes rather academic in view of our subsequent conclusions. We note here, however, that in McDaniel v. Lovelace, Mo.App., 392 S.W.2d 422, the St. Louis Court of Appeals held that a nunc pro tunc order correcting prior proceedings in a jurisdictional respect was a final judgment in a case and thus was appealable; also that the nunc pro tunc proceedings were independent proceedings. In Farrell v. DeClue, Mo.App., 365 S.W.2d 68, an appeal from a nunc pro tunc order was sustained and the order 'held for naught,' l.c. 75. While we are unwilling to hold, as a...