State ex rel. Kansas City v. Burney

• Decision Date: 30 December 1929
• Docket Number: 29927
• Citation: 23 S.W.2d 117,324 Mo. 363
• Parties: The State ex rel. Kansas City and Herbert v. Jones et al., Members of Board of Zoning Appeals, v. Clarence A. Burney, Judge of Circuit Court of Jackson County
• Court: Missouri Supreme Court

23 S.W.2d 117

324 Mo. 363

The State ex rel. Kansas City and Herbert v. Jones et al., Members of Board of Zoning Appeals, v. Clarence A. Burney, Judge of Circuit Court of Jackson County

No. 29927

Supreme Court of Missouri

December 30, 1929

Provisional rule discharged.

John T. Barker and Wm. H. Allen for relators.

(1) The allowance of an appeal from any final judgment in which a city is the appellant, stays the execution of said judgment pending said appeal. Sec. 1473, R. S. 1919; State ex rel v. Henning, 194 Mo.App. 545; State ex rel. Railroad Co. v. Hirzel, 137 Mo. 435; State ex rel. Priest v Calhoun, 226 S.W. 329; State ex rel. Busch v Dillon, 96 Mo. 56; Parker v. Railroad Co., 44 Mo. 415; Mo. Pac. Ry. Co. v. Atkinson, 17 Mo.App. 484; State ex rel. v. Dillon, 98 Mo. 90; Am. Brew. Co. v. Talbot, 135 Mo. 170. (2) Prohibition will lie to prevent a circuit judge from enforcing his execution on a final judgment during the pendency of an appeal, where such appeal, under the statute, operates as a supersedeas. State ex rel. Priest v. Calhoun, 226 S.W. 329; State ex rel. Railroad Co. v. Hirzel, 137 Mo. 435; State ex rel. v. Henning, 194 Mo.App. 545.

James A. Reed, James E. Taylor, Maurice J. O'Sullivan and Julius C. Shapiro for respondent.

(1) Under the law governing the case at bar, the action of respondent in overruling the motion for supersedeas was proper, because, if sustained, would vitiate the judgment rendered. Sec. 1473, R. S. 1919; Laws 1925, pp. 310-311; State ex rel. Myers v. Shinnick, 19 S.W.2d 678; State ex rel. Sexton v. Roehrig, 19 S.W.2d 626; State ex rel. Warde v. McQuillin, 262 Mo. 256; State ex rel. Elam v. Henson, 217 S.W. 17; State ex rel. Gray v. Henning, 194 Mo.App. 550, 185 S.W. 1154; State ex rel. Craig v. Woodson, 128 Mo. 518; Albers Com. Co. v. Spencer, 236 Mo. 608; Schuepbach v. Gaslight Co., 232 Mo. 603; Mo. Pac. Ry. Co. v. Atkinson, 17 Mo.App. 494; Lewis v. Railroad Co., 59 Mo. 503. (2) The judgment and decree of respondent being concededly within his jurisdiction, prohibition may not be invoked, to correct error, if any, when the ordinary and usual remedies provided by law are adequate and available. State ex rel. Craig v. Woodson, 128 Mo. 497, 518; State ex rel. Gray v. Henning, 194 Mo.App. 545, 185 S.W. 1154; Iba v. Railroad Co., 192 Mo.App. 297, 182 S.W. 135; State ex rel. v. Springer, 134 Mo. 222; Berry v. Ins. Co., 298 S.W. 65; Burgess v. Donoghue, 90 Mo. 299; 22 R. C. L. 9; 11 C. J. 219.

Blair, J. All concur, except Walker, J., absent.

OPINION

BLAIR

Prohibition. Respondent is judge of Division No. 6 of the Circuit Court of Jackson County. Relators seek to prohibit him from taking certain steps in a certiorari proceeding against the Board of Zoning Appeals of Kansas City pending in said court. Our provisional rule issued. Respondent filed his return, comprising a demurrer to portions of relators' petition and an answer to other portions thereof. Relators filed their motion to strike out certain portions of the return and this motion was taken with the case. The facts fully appear in the pleadings and are not controverted.

Relators are the city of Kansas City and the individual members of the Board of Zoning Appeals of said city. On May 23, 1929, the Circuit Court of Jackson County, on petition of Charles C. Nigro, issued its writ of certiorari to review the action of said Board of Zoning Appeals in refusing to modify the provisions of the zoning ordinance of Kansas City in respect to certain property belonging to Nigro. Said cause was assigned to Division No. 6 of said court, over which respondent presides as judge. On July 11, 1921, according to relators' petition, "respondent made and entered a finding of facts and declaration of law in said cause, ordering and decreeing that the action of the Board of Zoning Appeals in failing and refusing to modify the provisions of said zoning ordinance aforesaid, acted unreasonably, arbitrarily and unlawfully, and said respondent further ordered the Building Commissioner of Kansas City, who was not a party to that suit, to issue forthwith a building permit to the petitioner in that cause."

Thereafter timely motions for new trial and in arrest of judgment were filed by relators. On July 16, 1929, Nigro filed his motion to modify the court's decree, and on July 20, 1929, respondent sustained said motion and entered an order, the substance of which we will briefly sketch. Respondent found that the general rules and regulations of the zoning ordinance, as applied to the real estate owned by Nigro, were unjust, unreasonable, discriminatory and unlawful and deprived Nigro of his real estate and the use thereof, and reversed, quashed and for naught held the order of the Board of Zoning Appeals and held that the zoning ordinance, as applied to said real estate, should be modified and partially suspended so as to permit the owner thereof to use the same for retail business purposes and to erect thereon a store and business building. Kansas City and its officers and agents were ordered and directed to issue to Nigro a permit for the erection and construction of a one-story business store building on said real estate. We quote the remainder of respondent's order in full:

"And it appearing to the court that relator has paid to said city the necessary fees for the issuance of said permit and that his plans and specifications have been approved by said city and by its commissioner of buildings and that said city and its officers, agents and employees have failed and neglected to issue to relator a proper building permit, and that no reason exists for such failure, it is ordered and adjudged that if said Kansas City, its officers, agents and employees shall fail, neglect or refuse to issue such building permit forthwith, that this decree shall operate as such permit and the relator is authorized and empowered to proceed with the erection and construction of the proposed improvements on the real estate aforesaid, and Kansas City, Missouri, its officers, agents and employees and all other persons, shall be and they are estopped from claiming or attempting to claim that relator is proceeding with the erection or construction of said proposed improvements without a proper permit therefor; and it is ordered that the costs herein be paid by relator and that execution issue to enforce this decree.

"The defendants' motion for a new trial, heretofore filed herein, coming on for hearing and same having been fully considered by the court, is in all respects overruled, to which action and ruling of the court the defendants then and there excepted.

"Defendants refiled motion for a new trial and motion in arrest of judgment and same are taken up, considered and by the court overruled to which action and ruling of the court defendants and each of them excepted and still except.

"Defendants' application and affidavit for appeal filed and appeal allowed to the Supreme Court of the State of Missouri.

"Defendants' oral motion to enter order to have appeal act as a supersedeas is overruled and it is ordered said appeal shall not act as a supersedeas to the order and decree of the court entered herein, to which action and ruling of the court defenda...