City of Mobile v. Lee, 1 Div. 892

• Decision Date: 10 January 1963
• Docket Number: 1 Div. 892
• Citation: 274 Ala. 344,148 So.2d 642
• Parties: CITY OF MOBILE v. Aloyis LEE.
• Court: Alabama Supreme Court

Page 642

148 So.2d 642

274 Ala. 344

CITY OF MOBILE v. Aloyis LEE.

1 Div. 892.

Supreme Court of Alabama.

Jan. 10, 1963.

Fred G. Collins, Mobile, for appellant.

J. Terry Reynolds, Jr., and Wm. R. Lauten, Mobile, for appellee.

COLEMAN, Justice.

This is an appeal by the City of Mobile from a judgment wherein the circuit court affirmed an order of the Board of Adjustment of the City of Mobile. The order of the board granted appellee's application for a variance so as to permit the construction of a gasoline service station on a certain lot located in a residence zone in the city.

In addition to the city, the city commissioners, the Crestview Civic Association, and certain individuals appealed to the circuit court. Only the city prosecutes the instant appeal.

Appellee has moved to dismiss the appeal on two grounds, the first ground being that the transcript was not timely filed in this court.

The transcript of evidence was established in the circuit court on February 23, 1960. Rule 37 of the revised rules of this court; amended February 17, 1956; 263 Ala. XXI; Code of Alabama Recompiled 1958, Title 7, Appendix; requires that the transcript of the record be filed in this court within sixty days after the transcript of the evidence has been established in the court below. The transcript was, therefore, in the absence of an extension of time for filing, due in this court not later than April 23, 1960.

The transcript was filed in this court on May 23, 1960. This filing was obviously too late unless the trial judge extended the time for thirty days as permitted by Rule 37, supra.

On April 20, 1960, the trial judge ordered that '* * * the Appellant shall have thirty additional days within which to file the transcript of pleadings and evidence in this cause in the Supreme Court of Alabama.'

Appellee contends that the thirty additional days thus granted ran from April 20, the date of the order, and not from April 23, the original date on which time for filing in this court expired.

We do not agree. The ordinary meaning of the language of the order seems to us to require that the additional days run from April 23 and not from April 20. If the days run from April 20, then the order would grant only twenty-seven and not thirty additional days. Appellant already could file in time on April 23. Until that day had expired no day was additional. We concede that an order could be so written that it would grant additional days from the date of the order merely, but that is not this case. The order granted thirty additional days without limitation and we hold that the additional days ran from April 23. The first ground relied on for dismissing the appeal is not well taken.

The second ground argued in support of the motion to dismiss is that appellant, the city, is not aggrieved by the ruling of the circuit court, and, therefore, has no appealable interest.

This objection to appellant's right to sue in the appellate court comes too late. We do not find where appellee asserted in the circuit court that the city lacked standing, as a party aggrieved, to appeal to that court from the decision of the Board of Adjustment.

The city and the members of the governing body of the city filed notice of appeal to the circuit court from the decision of the Board of Adjustment. The Board of Adjustment and appellee filed a general appearance in the circuit court wherein they undertook to 'reserve the right to demur or plead specially.' We have not found, however, where appellee filed any pleading which raised the issue of the city's lack of interest to appeal to the circuit court.

The principle is well established that the issue of want of capacity in, or right or authority of, the plaintiff to maintain suit is matter in abatement, and that the practice prevailing in suits at law and in equity requires that when a party sued would deny the capacity in which the plaintiff sues, it must be done by plea, demurrer, or other appropriate pleading. The right to sue is admitted by a plea to the merits and is a waiver of any objection to the capacity of the plaintiff to bring the suit. This rule would seem to derive especial force, when applied to cases like the present one, from the fact that the material issue in dispute is not the title to land, or the recovery of possession thereof, but whether a certain parcel of realty may be used for a certain purpose under a city zining ordinance, irrespective of the owner. City of Prichard v. Geary, 268 Ala. 243, 247, 105 So.2d 682.

The pleading in this case amounts to nothing more than a statement that the applicant desires a variance. We find no pleading by the opposite party. The application to the board of adjustment undertakes to name the owners of property abutting and directly across the street from the involved property, but only one such owner is named. The only process issued by the board and shown by the record is that in two issues of a newspaper a notice was published stating that application for variance had been made and that the board would hold a public hearing on a day certain. Notice of appeal from the decision of the board is addressed to the board and is filed with the secretary of the board and the clerk of the circuit court. The record discloses no additional pleading before trial in the circuit court. We have found no process issued by the circuit court. It may not be necessary to show the process in this record because the parties appeared in the circuit court. These matters we mention, however, to show the lack or, at most, the informal and indefinite nature of pleading in this case. Such informality probably appears in most variance proceedings.

While the city was technically a defendant in the circuit court, the foregoing rule fixing the time to challenge a plaintiff's right to sue applies also with respect to the time to challenge the city's right to appeal to the circuit court under § 783, Title 37, Code 1940. Said § 783 gives to any party aggrieved by any final decision of the board of adjustment the right to appeal to the circuit court. If, as appellee now contends, the city is not a party aggrieved by the decision of the circuit court granting the variance, then the city was not a party aggrieved by the decision of the board of adjustment, which granted the same variance, and from which decision appeal was taken to the circuit court. Appellee was bound to raise the objection in the circuit court or else to be regarded as having waived the objection.

Thus we are of opinion that the second ground of the motion to dismiss the appeal is without merit and that the motion to dismiss is due to be overruled.

We are not unmindful of Fourth National Bank of Montgomery v. Kelly, 203 Ala. 526, 84 So. 755, where this court applied the principle that an appeal must be dismissed where it does not appear from the record that any one of the several appellants has any interest in the subject matter of and is not prejudiced by the decree appealed from. The decree there appealed from was rendered on a petition which was ancillary to the original proceedings to foreclose a deed of trust. The appellee there could not have successfully challenged in the circuit court the rights of appellants to be parties to the proceeding in that court on his petition. When those parties attempted to appeal, appellee, at his earliest opportunity, challenged the right of appellants to maintain the appeal, and in that particular, as we view it, the Kelly case, supra, is distinguished from the instant appeal.

On the merits, appellant asserts that appellee has failed to prove unnecessary hardship

Appellant says, first, that, at most, appellee has only a real estate commission and a possible ten per cent interest in the property in event the variance be granted, and that such an interest is not sufficient to sustain appellee's claim of unnecessary hardship.

If appellant is asserting that appellee has no such interest in the property as to entitle appellee to apply for a variance and maintain this action, then appellant's assertion comes too late. City of Prichard v. Geary, supra. Appellant should have raised the issue of appellee's lack of interest by a proper pleading prior to this appeal.

If appellant is asserting that, under the facts shown, appellee's interest is such that the could not suffer an unnecessary hardship, we think there is evidence to the contrary in that appellee, without objection by appellant, testified as follows:

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