Moerder v. City of Moscow

• Decision Date: 24 November 1953
• Docket Number: No. 8016,8016
• Citation: 263 P.2d 993,74 Idaho 410
• Parties: MOERDER v. CITY OF MOSCOW et al.
• Court: Idaho Supreme Court

Page 993

263 P.2d 993

74 Idaho 410

MOERDER v. CITY OF MOSCOW et al.

No. 8016.

Supreme Court of Idaho.

Nov. 24, 1953.

Melvin J. Alsager, Moscow, J. H. Felton and William J. Jones, Lewiston, for appellant.

Jerry V. Smith, Lewiston, Robert W. Peterson, Moscow, for respondents.

KEETON, Justice.

Claiming special damages to himself and as owner of a residence and other property in a zoned area in the City of Moscow, appellant brought this action to secure a writ of mandate to require the Mayor and City Officials of the City of Moscow to enforce a zoning ordinance designated in the petition as Sec. 4-902 Ordinances of the City of Moscow. This ordinance so far as pertinent reads:

'No building shall be erected within any residence zone of the City of Moscow, any portion of which is nearer the street line than the 'Building Line' as defined herein. The 'Building Line' on either side of any lineal block shall mean a line parallel to and back from any street line which is distant from such street line by a space or interval representing the average distance between the street line and the nearest adjacent outer portions of each and every dwelling house or structure erected on the same side of the street in the same lineal block.'

In the petition appellant alleged he is the owner of a residence in a block covered by the ordinance, built a distance of 72'7'' from the street line. Other residences in the block were constructed distance from the street line 55', 42', 135'3"', 54'6"', and 60'4"', and petitioner alleged that defendants Lottie Johnson and her husband, H. C. Johnson, had violated this ordinance, under a permit from the City of Moscow, and constructed a residence 43'10'' distant from the street line.

Petitioner further alleged that the permit to construct the residence complained of was not secured in accordance with the procedure prescribed by the ordinances of Moscow for various reasons alleged, claiming numerous acts of omission on the part of the City Officials; that appellant had protested the claimed violation of the ordinance in question to the Mayor and City Council and to Lottie Johnson and her husband, H. C. Johnson; and appellant, in his petition, claims that the Mayor and City Council wilfully refused to abide by or enforce the zoning ordinance establishing building lines; that thereafter the Mayor and City Council passed, or attempted to pass, another ordinance which prescribed a new building line for the block in controversy, fixing a line for the construction of dwellings in the block or area in question, 41' from the street line, which would be a lesser distance than that prescribed in the ordinance claimed to have been in force when the dwelling of the Johnsons was constructed, or the permit to construct the same applied for. This latter ordinance changing the building lines in the block or area in question is attacked as void for numerous reasons alleged, and it is claimed that it is an attempt on the part of the City Officials to legalize past illegal acts of the City.

The complaint asks for a writ of mandate commanding the Mayor and City Council of Moscow to comply with said original building ordinance in respect to the building of houses in the block in question, together with other relief.

An amended petition was filed and other persons than those now before us were made defendants. Different attorneys appeared for different defendants, filed demurrers, and a motion to quash the alternate writ of mandate. Hearing was had on the demurrers and motion, and the trial court made an order dated February 9, 1953, in which he overruled the demurrers, but granted, without hearing any evidence, the motion to quash and dismissed the proceedings. From this order the petitioner Roy R. Moerder appealed.

Notice of appeal was filed with the clerk on May 8, 1953, and served on the attorneys then representing the various parties. Thereafter on the 5th day of June, 1953, appellant filed a praecipe. The record on appeal was filed in this Court July 9, 1953. praecipe was not filed within five days after filed in this Court motions to dismiss the appeal on two grounds: first, that the praecipe was not filed within five five daysafter the filing and service of the notice of appeal; second, that appellant has failed to serve upon defendants and respondents, H. C. Johnson, Lottie Johnson, Norman Johnson and Sally J. Johnson, or their attorney, a copy of the transcript, and that no notice of service of the transcript upon the City of Moscow and its officers was given them or him.

In a showing made by appellant, filed subsequent to respondents' motions to dimiss, it is alleged, and not denied, that the transcript was served upon Robert W. Peterson, who had appeared for the City of Moscow and its officials, and who was then attorney for said respondents; and it is alleged that attorney Peterson sent the transcript to Jerry V. Smith of the firm of Cramer & Smith, attorney for the Johnsons.

The transcript on appeal does not contain acknowledgment of service of any respondents or their attorneys, and the attorneys for the Johnsons have filed affidavits that no such service was made on them, or any of them. However by affidavit of appellant's attorney above referred to it does appear that service of the transcript was made on the attorney representing the City of Moscow and its officers, and that the transcript was by him delivered to the attorney representing other respondents.

The failure to file the praecipe designating the papers desired to be used and included in the transcript, with the clerk of the district court, within five days of the filing of the notice of appeal as required by Sec. 13-215, I.C. is...