Heron v. CITY AND COUNTY OF DENVER, COLORADO

• Decision Date: 20 May 1963
• Docket Number: No. 7153.,7153.
• Parties: Kenneth A. HERON, Appellant, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation of the State of Colorado, Richard Y. Batterton, individually, and as Mayor of the City of Denver, Walter Krstich, individually and as Chief Building Inspector of the City of Denver, and their successors in office, and Duke W. Dunbar, as Attorney General of the State of Colorado, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

317 F.2d 309 (1963)

Kenneth A. HERON, Appellant, v. CITY AND COUNTY OF DENVER, COLORADO, a municipal corporation of the State of Colorado, Richard Y. Batterton, individually, and as Mayor of the City of Denver, Walter Krstich, individually and as Chief Building Inspector of the City of Denver, and their successors in office, and Duke W. Dunbar, as Attorney General of the State of Colorado, Appellees.

No. 7153.

United States Court of Appeals Tenth Circuit.

May 20, 1963.

George K. Thomas, Denver, Colo., for appellant.

Brian H. Goral, Asst. City Atty. (Robert S. Wham, City Atty., on the brief), for appellees.

Before PICKETT and SETH, Circuit Judges, and CHRISTENSEN, District Judge.

SETH, Circuit Judge.

Appellant brought this action against the City and County of Denver and certain of its officials complaining that an ordinance unduly restricted his right to practice his profession as an engineer licensed by the state of Colorado. The ordinance describes the types of buildings the plans for which may be prepared and submitted for approval by licensed engineers and which may be submitted by architects. This ordinance, prior to the amendment of the state statute on the same subject, was contested by this appellant without success, both in the state courts and in the federal courts. Appellant here sought to enjoin the enforcement of the ordinance and its distribution in pamphlet form. The appellees' motion to dismiss was denied, as was appellant's motion for summary judgment. A trial was had, and the judge found appellant had suffered no irreparable damage and had been deprived of no rights by the promulgation or distribution of the ordinance. Further the trial court found there was no evidence to sustain appellant's contention that he would be irreparably damaged in the future. Judgment was entered for the defendants-appellees.

On this appeal it is urged that appellant's motion for summary judgment should have been granted, and that the findings as to the absence of irreparable injury were erroneous.

As to the failure to grant the summary judgment, appellant recognizes in his brief that generally no appeal lies from the denial of such a motion, but urges that the circumstances here warrant an exception. Appellant through his motion for summary judgment sought a permanent injunction to prevent enforcement of the ordinance. No preliminary injunction was sought. Thus in the denial of the motion the trial court did not refuse an injunction, but only decided that there should be a trial on the merits. Morgenstern Chem. Co. v. Schering Corp., 181 F.2d 160 (3d Cir.); Division 689, Amalgamated Ass'n of Street Electric Ry. & Motor Coach Employees of America v. Capital Transit Co., 97 U.S.App.D.C. 4, 227 F.2d 19; 6 Moore, Federal Practice 2321. The denial was interlocutory but not within the meaning of 28 U.S.C. § 1292(a) (1). The action proceeded to trial as above mentioned.

In the trial court's requirement that there be a showing of irreparable injury, we also find no error. The action was an ordinary injunction proceeding, and there is no reason why the usual requirements for granting such an extraordinary remedy should be dispensed with. The trial judge found that appellant had submitted no plans to the city officials for their approval...