Cole v. City of Osceola

• Citation: 179 N.W.2d 524
• Decision Date: 02 September 1970
• Docket Number: No. 54037,54037
• Parties: King COLE, Ambrose Saner, William Webster, Bert Bishop, Ralph McGee, H. E. Stroy, Edward Lauvstad, G. I. Armitage and Paul Ostrus, Appellees, v. CITY OF OSCEOLA, Intervenor, v. Russell BUSICK and Lorene Busick, Appellants.
• Court: United States State Supreme Court of Iowa

Page 524

179 N.W.2d 524

King COLE, Ambrose Saner, William Webster, Bert Bishop, Ralph McGee, H. E. Stroy, Edward Lauvstad, G. I. Armitage and Paul Ostrus, Appellees, v. CITY OF OSCEOLA, Intervenor, v. Russell BUSICK and Lorene Busick, Appellants.

No. 54037.

Supreme Court of Iowa.

Sept. 2, 1970.

P. F. Elgin, of Watson, Elgin & Hoyman, Indianola, for appellants.

L. P. Van Werden, of Reynoldson & Reynoldson, Osceola, for intervenor.

T. E. Mullin and E. T. Harvey, Jr., of Mullin, Mullin, McLaughlin & Harvey, Creston, for appellees.

MASON, Justice.

This equitable action was instituted by plaintiffs as resident owners of real estate within a restricted district in Osceola, a municipal corporation in Clarke County to enjoin Russell Busick and his wife Lorene from placing and continuing to maintain trailer-type structures on a lot in this restricted area.

Defendants, residents of Council Bluffs had acquired the tract involved in April 1968. It is described as being 230 by 130 feet less a 50 by 100-foot parcel which had been conveyed for church purposes sometime before the present suit. Busicks own a two-story apartment containing two rental units located on a portion of the lot. The apartments were occupied at the time material here.

Busicks had purchased two mobile homes for approximately $2500 and $3000 which they intended to use as rental units on their Osceola property. Before moving the units from Council Bluffs Mr. Busick made inquiry of the Osceola city clerk to determine what procedure had to be followed for placing these two units on part of his real estate without violating any city ordinances. Busick said he was told the city had certain conditions for location of mobile homes but if he wanted to make the units permanent he would have to remove the undercarriages, axles and wheels, cut off the hitch, turn the title in to the county and have the units assessed as real estate. Section 135D.26, Iowa Code, 1966.

Following this conversation in May, Busick had sewer and water lines laid and connected to lines in the apartment house basement, trenches dug 42 inches deep and filled with concrete to serve as a foundation for cement blocks to be placed around the edge so each unit would have its own foundation.

In June following completion of the foundation footings and installation of sewer and water lines Busick moved the trailers to Osceola.

When the first unit was brought to Osceola one plaintiff stopped its being placed on the Busick property. This trailer was later parked at a filling station west of Osceola. The following day Busick accompanied the movers in bringing the other trailer to Osceola. It was placed on the property.

Busick commenced to make the changes and modifications necessary for having the units converted to real estate. Before he had opportunity to remove the undercarriages, he was served with a temporary injunction restraining him and his wife from constructing or placing trailer-type structures or mobile homes on their land until further order of court. The injunction was granted on plaintiffs' ex parte application.

After the pleadings were at issue, the city intervened by joining with plaintiffs in asking that the injunction be made permanent.

Following trial on the merits the court permanently enjoined defendants from keeping, permitting and maintaining the present mobile home type structure on the real estate involved until a permit was issued by the Osceola City Council in accordance with provisions of city ordinance 95.

Defendants appeal asserting two propositions relied on for reversal. They contend the court erred in applying city ordinances governing mobile homes and restricted residential districts to defendants' structure and in granting the permanent injunction.

I. Our review is de nov. Rule 334, Rules of Civil Procedure. It is our duty to review the whole record and adjudicate rights anew on those propositions properly presented, provided issue has been raised and error, if any, preserved in the course of trial court proceedings. Rouse v. Rouse, 174 N.W.2d 660, 666 (Iowa 1970). Of course, questions not presented to and not passed upon by the trial court cannot be raised or reviewed on appeal. In re Adoption of Moriarty, 260 Iowa 1279, 1288, 152 N.W.2d 218, 223.

II. We considered defendants' propositions other than in the order argued.

In support of the second proposition defendants contend plaintiffs are not proper parties to bring an action of abatement under the provisions of section 415.3 Code, 1966 or section 8 of municipal ordinance 95. Stated another way, defendants maintain plaintiffs as individual property owners in the restricted area had no standing to maintain this suit.

The record does not indicate defendants raised this objection in the trial court proceedings until perhaps in final argument. Objection made at this trial stage did not raise an issue on this contention since ordinarily a general denial is not enough to raise an issue on plaintiff's standing to sue. This was not a case where defendants had no direct knowledge of the facts relating to this issue or where plaintiffs' allegations have enlarged the scope of the general denial. The objection would not have been waived if asserted for the first time in answer but defendants failed to do so.

Usually, a denial of the opponents' capacity to sue is a matter that must be specifically raised in pre-trial motion or responsive pleading or is deemed waived.

A distinction is made in some jurisdictions between capacity to sue and standing to sue. It is well explained in Parker v. Bowron, 40 Cal.2d 344, 254 P.2d 6, 9. Such a distinction has significance. But there is no logical reason why a party should be required to specially raise one of these defenses in pre-trial motion or responsive pleading and not the other. For this reason we hold a party desiring to challenge an opponent's standing to sue must do so in the same manner or the defense is waived. This rule is to be applied to a party the court finds has, or in the exercise of reasonable care should have had, knowledge prior to trial of the facts upon which he bases attack. But where a party first learns of an opponent's lack of standing during trial, rule allowing amendments of pleadings during trial is applicable. Rule 88, R.C.P.

The issue was neither presented by the pleadings nor tried by consent. See Rouse v. Rouse, supra, 174 N.W.2d at 666. Since the question presented by this proposition was not properly preserved in the trial court it presents nothing for review.

Defendants did not urge this argument against intervenor.

III. Defendants assert as one brief point in support of their first proposition that ordinance 151 is an illegal exercise of police power.

Defendants and plaintiffs argue the merits of this issue in their briefs and the court commented on the question but intervenor contends defendants failed to properly raise the question by pleading specific allegations of invalidity or unconstitutionality.

It is well settled that when the constitutionality of an ordinance is challenged all reasonable intendments must be indulged in favor of its validity. Plaza Recreational Center v. Sioux City, 253 Iowa 246, 252--253, 111 N.W.2d 758, 762--763; Zilm v. Zoning Board of Adjustment Polk County, 260 Iowa 787, 793, 150 N.W.2d 606, 610 and authorities cited in these opinions. The strong presumption in favor of a legislative act applies, as well, to zoning ordinances, Brackett v. City of Des Moines, 246 Iowa 249, 260, 67 N.W.2d 542, 547. One who attacks such legislation on constitutional grounds has the burden of pleading its invalidity and unreasonableness and assumes the burden to negate every reasonable basis upon which the ordinance may be sustained. State v. McNeal, 167 N.W.2d 674, 677 (Iowa 1969) and authorities cited.

With these principles in mind we consider intervenor's petition and defendants' answer thereto.

Division I of intervenor's petition is based on city ordinance 95 designating and establishing a restricted residential district within the corporate limits of Osceola. Defendants' violation of various sections of this ordinance is asserted. In division II the city seeks injunctive relief on the theory defendants violated ordinance 151. In this division the city, after alleging essential and material facts, sets forth the substance of various sections of the ordinance. It specifically states in this division none of defendants' real estate is licensed as a mobile home park in accordance with the provisions of the ordinance.

In answering this division defendants admit they did not obtain a permit for the parking of a trailer-type home on their real estate but never assail the constitutionality of this ordinance by specifically alleging the details of supposed invalidity.

In view of the fact that we find in our de novo review defendants offered no evidence to rebut or overcome the presumption of constitutionality of the ordinance let alone any evidence tending to affirmatively establish invalidity or unconstitutionality of this ordinance or any provision thereof it cannot be successfully maintained the issue was tried by consent.

We agree with the intervenor the validity of ordinance 151 was never properly raised by defendants' pleadings even as amended.

IV. In support of their contention ordinance 151 regulating mobile homes and mobile home parks is not applicable to them defendants maintain that when the structures are placed on permanent foundations and water and sewer connections completed as intended the units will be permanent residences included on tax rolls for general property taxation and their use will not be in violation of this ordinance.

This ordinance defines a mobile home in section 1.1 in this manner:

'A mobile home shall mean any occupied vehicle used or so constructed as to permit its being used as a conveyance upon the public streets, or highways and duly licensed or licensable, as such,...