City of St. Louis v. Silk

• Citation: 199 S.W.2d 23,239 Mo.App. 757
• Parties: The City of St. Louis, a Municipal Corporation, Respondent, v. Sam Silk and Jenny Silk, Defendants-Appellants, Fred C. Lang, Intervenor-Appellant
• Decision Date: 21 January 1947
• Court: Missouri Court of Appeals

199 S.W.2d 23

239 Mo.App. 757

The City of St. Louis, a Municipal Corporation, Respondent, v. Sam Silk and Jenny Silk, Defendants-Appellants, Fred C. Lang, Intervenor-Appellant

Court of Appeals of Missouri, St. Louis District

January 21, 1947

Intervenor-Appellant's Motion for Rehearing, or, in the Alternative, to Transfer the Cause to the Supreme Court of Missouri, Overruled February 21, 1947.

Appeal from the Circuit Court of the City of St. Louis; Hon. William S. Connor, Judge.

Affirmed.

Frank Boland and Jerome Simon for appellants.

(1) Fred S. Lang, intervener, is a party aggrieved and is entitled to an appeal. Missouri Laws of 1943, page 390; State ex rel. v. Sartorius, 349 Mo. 1039, 163 S.W.2d 981. (2) Lang is a party appellant, because he was originally joined as a party defendant, and because the decree enjoins him and affects his rights and directs that he be served with a copy of the decree. 3 C. J. 634, Par. 493; 43 C. J. S. 947 Par. 214; 43 C. J. S. 959-60, Par. 220; 34 C. J. 1009, Par 1431; 34 C. J. 1020, Par. 1443. (3) Lang's application to intervene should have been granted upon its presentation or sometime prior to defendant Silks' appeal. Authorities cited under Points (1) and (2). (4) After appeal by defendants Silk the trial court lost all jurisdiction except as to matters relating to the perfection of the record on appeal. 4 C. J. S. 1089-93; State ex rel. St. Charles Savings Bk. v. Hall, 321 Mo. 624, 12 S.W.2d 91, 94; Bromschwig v. Carthage Marble and White Lime Co., 334 Mo. 830, 68 S.W.2d 820.

George L. Stemmler and William R. Davis for respondent.

(1) (a) The evidence in plaintiff's case shows that property in question was a conforming use on May 26th, 1926, when zoning ordinance went into effect. It was used for a hospital. This is a legal use of property in a multiple dwelling district under Section 164, subsection 6 of Zoning Ordinance. (b) Having failed to obtain statutory certiorari review of adverse decision of Board of Adjustment, property owner is not entitled to review thereof by intervening in equity suit. Park Ridge Fuel & Material Co. v. City of Park Ridge, 167 N.E. 119, 335 Ill. 509; Superior Press Brick Co. v. City of St. Louis et al., 155 S.W.2d 290; State v. Roberson, 150 S.E. 674, 198 N.C. 70; Provo City et al. v. Claudin et al., 63 P.2d 570. (c) The evidence offered before Board of Adjustment shows that this property was not a nonconforming use, but shows it was a conforming legal use when zoning ordinance went into effect. The same evidence was offered by Lang before the Circuit Court in his attempt to intervene. Defendants simply failed to plead and prove a valid defense and Lang offered the same evidence, and he, too, stands in the same position as defendants, because he did not show any facts or law that would entitle him to intervene. Section 168 of the Zoning Ordinance defines a nonconforming use of land or buildings. State ex rel. Negro v. Kansas City et al., 27 S.W.2d 1030; In re Botz v. Garrett et al. (City of St. Louis, Intervenor), 159 S.W.2d 367; State ex rel. Kaegel v. Holekamp et al., Board of Adjustment, 151 S.W.2d 685. (d) Board of Adjustment's judgment on appeal from decision of administrative official, enforcing zoning ordinance, cannot be collaterally attacked. State v. Roberson, 150 S.E. 674, 198 N.C. 70; Washington v. City of Dallas, 159 S.W.2d 579. (2) (a) One with notice may be amenable to an injunction though not a party to suit in which injunction was issued. Kelly v. City of Cape Girardeau, 89 S.W.2d 693, l. c. 695; Ex parte Dillon, 96 S.W.2d 1095. (b) Where defendant did not pursue his statutory remedy to review an order of the Board of Adjustment determining defendant was not entitled to operate a business in a dwelling district on ground that nonconforming use of premises antedated zoning, board's order became a "final order," and in City's action to enjoin violation of zoning ordinance, the trial court did not err in excluding defendant's testimony in support of his reasserted claim that nonconforming use antedated zoning. Washington v. City of Dallas, 159 S.W.2d 579; Park Ridge Fuel & Material Co. v. City of Park Ridge, 167 N.E. 119, 335 Ill. 509; Superior Press Brick Co. v. City of St. Louis et al., 155 S.W.2d 290; State v. Roberson, 150 S.E. 674, 198 N.C. 70. (c) Anyone aggrieved may take an appeal from the building commissioner's ruling. (d) Any person or persons jointly or severally aggrieved by any decision of the Board of Adjustment may, within 30 days present to the Circuit Court of the City of St. Louis a petition, duly verified, setting forth that such decision is illegal, in whole or in part, and specifying the grounds of the illegality. (e) The jurisdiction of the Board of Adjustment is limited. (f) Defendants' problem is a legislative one. Sections 7413 and 7415, R. S. of Mo. 1939, provides the remedy. (3) The lease and subsequent contract to occupy the premises in question were illegal and void. Ober v. Metropolitan Life Ins. Co., 284 N.Y.S. 966; Hart v. City Theatres Co., 215 N.Y. 322; Schotz-Powers Co., Inc., v. Triedler, 219 N.Y.S. 4. (4) (a) The court had a right to retain jurisdiction in this matter until it was disposed of notwithstanding defendants had already appealed when Lang's application to intervene was heard. See Sec. 16, p. 360, Laws of Mo. 1943. (b) Motion or application to intervene must be timely. Lang waited several years before he decided to intervene. See page 363, Section 21, Laws of 1943.

Anderson, J. Hughes, P. J. and McCullen, J. concur.

OPINION

ANDERSON

On September 17, 1943, the City of St. Louis filed this suit against Morris Eckert and Birdie Eckert, the record owners of property known as 4301 Lindell Boulevard, and against Fred C. Lang, the lessee of said property, to enjoin an alleged violation of the zoning ordinance of the City of St. Louis. After the filing of the suit, the premises were sold to Sam Silk and Jenny Silk, and thereafter on October 15, 1943, Sam Silk was made a party defendant, and on November 13, 1943, Jenny Silk was made a party defendant. On April 10, 1944, the case was dismissed as to Morris Eckert, Birdie Eckert, and Fred C. Lang, leaving as defendants Sam Silk and Jenny Silk, the then record owners of the property.

On December 11, 1945, the case came on for trial. Plaintiff's evidence supported the allegations of the petition, and showed that under the zoning ordinance the building in question was in a multiple dwelling use district, and that Lang, contrary to the provisions of the ordinance, used the premises as a business office. Defendants' evidence failed to support the defense, namely, that the property was used for business purposes prior to the enactment of the zoning ordinance, and hence was used in a legal manner as a non-conforming use under the ordinance.

On December 18, 1945, the court entered a decree in favor of the plaintiff, and on December 21, 1945, the defendants filed a motion for new trial. While this motion was pending, Fred C. Lang filed an application for leave to intervene as a party defendant in said cause. In said application Lang averred that the decree "is illegal, null and void in so far that it effects the rights of your petitioner, for the reason that your petitioner has expended large sums of money improving the real estate at 4301 Lindell Boulevard in the City of St. Louis, Missouri, has expended large sums of money advertising his business there and has a five year lease on said premises, and that said lease is duly recorded in the Recorder of Deeds office in the City of St. Louis, Missouri, and for this Court to permit its judgment and decree to stand, would deprive your petitioner of his constitutional rights in that it would take his property away from him without due process of law."

Said application then continued as follows:

"Your petitioner requests that he be permitted to intervene in this cause to avoid a multiplicity of suits and that the Court grant him the right to intervene and present testimony to show that the matters in controversy are res adjudicata in that a trial was had on the same issues herein involved and that said trial resulted in a verdict in favor of the property owners.

"Your petitioner further states that at the time of the filing of this suit he was named a party defendant but that the plaintiff subsequently dismissed as to your petitioner.

"WHEREFORE: Your petitioner prays an order from this Honorable Court to set aside its judgment and decree heretofore entered and to allow your petitioner to intervene in said cause as a party defendant and that he be granted a trial on the issues herein."

On February 14, 1946, plaintiff moved to dismiss Lang's application, which motion was in words and figures as follows:

"Comes now plaintiff The City of St. Louis, a municipal corporation by leave of Court, files this its Motion to Dismiss Application of Fred C. Lang to Intervene in the Above Entitled Cause for the following reasons:

"a. That the applicant, Fred C. Lang, has no interest whatsoever in the subject of the above entitled action.

"b. That if the said applicant, Fred C. Lang, had a cause of action, he has been guilty of laches and whatever rights he may have had, have long since ceased to exist.

"c. That the alleged lease of the said Fred C. Lang was null and void in the beginning and that whatever lease he may have entered into with the present owners of said property, Sam Silk and Jenny Silk, his wife, is illegal because said lease was made in violation of the law and also because said lease was made long after the above entitled action was filed to restrain the Eckerts, the owners of the property in question at the time the above entitled cause was filed, and long after Sam Silk and Jenny Silk, his...