State ex rel. Levine v. Trimble

• Decision Date: 03 July 1928
• Docket Number: 28325
• Citation: 8 S.W.2d 927,320 Mo. 526
• Parties: The State ex rel. Harry Levine et al. v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

8 S.W.2d 927

320 Mo. 526

The State ex rel. Harry Levine et al. v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 28325

Supreme Court of Missouri

July 3, 1928

Motion for Rehearing Denied July 30, 1928.

Record quashed.

Jamison Ostergard & Jamison and Frans E. Lindquist for relators.

(1) That the Court of Appeals failed to follow the last previous rulings of the Supreme Court on a question of law and equity. Sec. 6, Amendment of 1884, Constitution; Tureman v Ketterlin, 263 S.W. 202; Street v. Marshall, 291 S.W. 494; State ex rel. Renfrow v. Service Cushion Tube Co., 291 S.W. 106; Laws 1925, p. 193; Reinman v. City of Little Rock, 237 U.S. 171. (2) The Court of Appeals failed to obey the mandate of the Supreme Court in the case of Finnegan v. Mo. Pac. Railroad Co., 244 Mo. 608, in reversing the Levine case instead of remanding it for a new trial. Windle v. City of Springfield, 275 S.W. 586. Certiorari not limited to points raised in petition. State ex rel. Allen v. Trimble, 297 S.W 380; State ex rel. Gilman v. Robertson, 264 Mo. 661; State ex rel. v. Bland, 291 S.W. 501; State ex rel. Peters v. Reynolds, 214 S.W. 122. (3) The Court of Appeals erroneously assumed and stated in its opinion, that the motion in arrest is good by reason of the fact that it does not state any ground for equitable relief; that the petition sets out a public nuisance and does not allege special injury to defendant, and of a different kind than that suffered by the general public. (a) The motion in arrest not before the court; and (b) only the record proper was before the court. Jefferson City v. Opel, 67 Mo. 394.

Achtenberg Fredman & Granoff and Donald H. Latshaw for respondents.

(1) Opinions of other courts of appeals or of other jurisdictions not considered on certiorari. State ex rel. Ins. Co. v. Allen, 310 Mo. 378. (2) The objection that the petitions of relators state no cause of action was properly considered by the Court of Appeals, even though no bill of exceptions was filed. State ex rel. Weatherby v. Brewing Co., 270 Mo. 100; Crowley v. Sutton, 209 S.W. 902; State ex rel. Transfer Co. v. Trimble, 250 S.W. 384. (3) The decision of the Court of Appeals is not in conflict with any prior decision of the Supreme Court. (a) Any conflict must appear on the face of the opinion. State ex rel. Greer v. Cox, 274 S.W. 373; State ex rel. Cox v. Trimble, 312 Mo. 322. (b) Alleged conflicting opinion of the Supreme Court must be based on similar facts. Realty & Inv. Co. v. Deere & Co., 208 Mo. 66; State ex rel. Ins. Co. v. Bland, 291 S.W. 501; State ex rel. Nat. Bank v. Sturgis, 276 Mo. 571; State ex rel. Packing Co. v. Reynolds, 287 Mo. 697; State ex rel. C. & A. Railroad v. Allen, 291 Mo. 206; State ex rel. Winters v. Trimble, 315 Mo. 1295; State ex rel. Wahl v. Reynolds, 272 Mo. 588; State ex rel. Bradley v. Trimble, 289 S.W. 924. (c) No conflict with cases cited by relators. (4) If the Court of Appeals has erred, it has erred as a matter of judgment or opinion in the application of recognized rules of law to the facts as pleaded, and not because it has refused to follow the opinions of this court. State ex rel. Calhoun v. Reynolds, 289 Mo. 517; State ex rel. Investment Co. v. Allen, 294 Mo. 220.

Seddon, C. Lindsay and Ellison, CC., concur.

OPINION

SEDDON

Original proceeding in certiorari commenced in this court, wherein relators seek the quashal of the opinion judgment and record of the Kansas City Court of Appeals in a certain action, originally commenced in the Circuit Court of Jackson County, at Kansas City, and taken by writ of error to said Court of Appeals, entitled, Harry Levine and Guiseppe Armelio, Defendants in Error, v. Louis Shostak, Plaintiff in Error. Relators claim that said decision and opinion is in conflict with certain controlling decisions of this court. The nature, object and purpose of said action, and the conclusion of said Court of Appeals therein, are thus stated in the opinion of said court, under review in this proceeding:

"On November 24, 1925, defendant in error, Harry Levine, filed his petition against plaintiff in error in the Circuit Court of Jackson County, Missouri. Suit was to restrain the plaintiff in error, Louis Shostak, from operating a junk yard close to the home of defendant in error. Defendant in error Guiseppe Armelio subsequently filed an intervening petition, adopting the allegations of Levine's petition. The answer was a general denial. The case was tried before the court and a decree was rendered permanently restraining the plaintiff in error from operating a junk yard on the premises described. Motions for a new trial and in arrest of judgment were filed, which, having been duly overruled, the case is brought here.

"There is no bill of exceptions filed and the case comes here on the record proper.

"The first point is made that the motion in arrest is good by reason of the fact that the petition does not state any ground for equitable relief; that the petition sets out a public nuisance and does not allege special injury to defendant, and of a different kind than that suffered by the general public. This proposition is answered by defendant in error in two ways: First, that the petition does set out special damages to defendant in error, and again, even if it does not sufficiently allege a cause of action the attack on the petition comes too late. We will take up the first proposition.

"Plaintiff in his petition after alleging the operation of the junk yard and that it is in close proximity to the homes of defendants in error, pleads the ordinance of Kansas City and the violation thereof. He does not allege any physical invasion of the property, no loss in market value, no physical damage to the property, no loss of rents and no insurance hazard. . . .

"We think from the allegations of the petition it appears that an effort is being made to abate a nuisance purely public; that the injury to plaintiff was the same as that suffered by the entire public. We think under the rule above set out, plaintiff's petition states no cause of action. . . . We think that the petition in seeking to restrain a nuisance purely public in its character, wholly fails to allege facts showing that plaintiff has suffered or will suffer some damage peculiar to himself.

"In view of the conclusion reached, it is unnecessary to discuss the other points raised in the brief of plaintiff in error.

"The judgment is reversed."

Inasmuch as the Court of Appeals has made reference, in its opinion aforesaid, to the petition in said cause or action, which petition has been transmitted to this court by said Court of Appeals, pursuant to our writ, as a part of its record in said cause, and inasmuch as the petition in said cause was the subject-matter of the ruling of said Court of Appeals, whose opinion and judgment is grounded solely upon the insufficiency of said petition to state a cause of action, this court will therefore examine the said petition in this original proceeding. [State ex rel. Union Biscuit Co. v. Becker (en Banc), 316 Mo. 865, 873, 293 S.W. 783, 786.] The petition, as transmitted with the record to this court by the Court of Appeals, is as follows:

"Plaintiff for his cause of action, states that he is, and at all times hereinafter mentioned was, the owner of and seized in fee of a certain tract of land in the County of Jackson, and State of Missouri, and described as the North 136 feet of Lot six (6), in Block three (3) of Rice's Addition in the City of Kansas City, Missouri, said property being the southwest corner of Independence Avenue and Holmes Street in said city.

"That on said land is a two-story, brick building, facing on Independence Avenue, with two stores on the ground floor, and dwelling rooms above. That in the rear of said building, and facing on Holmes Street, are two brick buildings, two stories in height, used exclusively for dwelling and residence purposes, and are now and have been at all times hereinafter mentioned, fully occupied. That plaintiff and his family live in the center one of said buildings.

"That Louis Shostak is the owner and occupant of the East twenty (20) feet of the North 136 feet of Lot five (5), Block three (3) of Rice's Addition in Kansas City, Missouri, which property adjoins the property of plaintiff, on the west, said defendant's property being numbered 619 Independence Avenue, in said city.

"That for many years, to-wit, since the year 1918, the defendant has operated a junk yard on said premises, against the repeated protests and remonstrances of plaintiff, and in violation of a city ordinance of Kansas City, Missouri, No. 17134, and that defendant is now doing business as a junk dealer, on said premises, under the name of the Southwestern Junk & Paper Co.

"That the operation of said junk yard by said defendant constitutes a nuisance to plaintiff, his family, tenants and surrounding neighbors, in the following particulars, to-wit:

"That defendant purchases old, dirty rags, papers and bones, which, after having been rained on, produce an intolerable stench and odor while drying, which is dangerous to the health of the plaintiff, his family and tenants.

"The defendant purchases old stoves and other iron, articles of large size, which defendant and his employees break into smaller pieces with sledge hammers, causing a loud, disagreeable noise, din and racket, thus disturbing the peace and quiet of plaintiff, his family and tenants.

"The defendant and his employees unload, from wagons, large quantities of old, dirty paper, rags, stoves and iron creating large quantities of dust, laden with germs, which are wafted to the doors and windows of plaintiff's buildings, and constitute a menace, and nuisance to the health of the...