Walthour v. Alexander, 5--4335

• Decision Date: 04 December 1967
• Docket Number: No. 5--4335,5--4335
• Citation: 421 S.W.2d 613,243 Ark. 621
• Parties: J. D. WALTHOUR et al., Appellants, v. L. Julian ALEXANDER et al., Appellees.
• Court: Arkansas Supreme Court

Page 613

421 S.W.2d 613

243 Ark. 621

J. D. WALTHOUR et al., Appellants, v. L. Julian ALEXANDER et al., Appellees.

No. 5--4335.

Supreme Court of Arkansas.

Dec. 4, 1967.

Rehearing Denied Jan. 8, 1968.

H. B. Stubblefield, Little Rock, for appellants.

Spitzberg, Bonner, Mitchell & Hays, and Joseph C. Kemp, and Perry V. Whitmore, Little Rock, for appellees.

GEORGE ROSE SMITH, Justice.

This is a zoning dispute. The appellee Alexander owns a triangular piece of property on the southwest corner of the intersection of Van Buren and Club Road in Little Rock. Alexander uses the little building on the property as a pick-up and delivery station for patrons of his laundry business. In 1965 the Board of Zoning Adjustment granted Alexander's application for permission to add 300 square feet to his building, making it about 850 square feet in all. This suit to review the Board's action was brought by the appellants, neighboring landowners who had opposed the issuance of the permit. The chancellor sustained the Board. For reversal the appellants contend that the Board's action was (I) illegal, (II) arbitrary, and (III) barred by limitations.

I. Illegality. Apparently the Board reclassified Alexander's property as 'F Commercial' back in 1959. The appellants insist that under the governing statute and the Little Rock zoning ordinance (which was marked Exhibit 11 at the trial) the Board had no power to rezone the property and that therefore the permit now in dispute violated a zoning restriction applicable to nonconforming uses. The appellee's answer to this contention is that the zoning ordinance (as well as several allied exhibits) was not put in evidence at the trial and so cannot be considered here.

We do not take judicial notice of city ordinances. Campbell v. City of Hot Springs, 232 Ark. 878, 341 S.W.2d 225 (1960). Nor can we consider a document that was not received in evidence even though it may have been in the courtroom, as, for example, an exhibit to a pleading. Wright v. Midland Valley R. R. Co., 111 Ark. 196, 163 S.W. 1151 (1914); National Annuity Ass'n v. McCall, 103 Ark. 201, 146 S.W. 125, 48 L.R.A.,N.S., 418 (1912).

Thus the question is, was Exhibit 11 put in evidence at the trial? We have suffered much anxiety in the study of this question, but we cannot conscientiously say that the exhibit was actually introduced. We may explain our conclusion by referring to pertinent parts of the record.

During the examination of the plaintiffs' first two witnesses five exhibits were received in evidence. In each instance the court made a ruling. This excerpt is typical:

Mr. Stubblefield: Could I have the one that shows both marked as Plaintiffs' Exhibit No. 2 and the second one as Exhibit No. 3?

The Court: Let them be introduced.

(Thereupon, said pictures were marked for identification and received in evidence.)

A few minutes later, after the plaintiffs' fourth witness left the stand, the record reflects the following:

Mr. Stubblefield: Your Honor, Mr. Bonner and I mentioned before the trial that each of us had some exhibits we would like to have marked for identification, and I believe we said we would let them be marked for identification without conceding their relevancy or competency. The reason we are doing it at this time, the witnesses who testified wanted to get away, and he was kind enough to consent we could do that.

Counsel for the plaintiffs then produced and described five pieces of documentary evidence, which were marked for identification as Exhibits 6 through 10. Counsel for the defense then, in the same manner, produced and described eight exhibits--the zoning ordinance and seven pictures--which were marked for identification as Exhibits 11 through 18.

Thereafter the reporter's transcribed record of the trial contains no additional reference to Exhibits 6 through 11. When defense counsel, in questioning his own client, sought to use the picture marked as Exhibit 12 this occurred:

Mr. Bonner: I hand you here Exhibit No. 12 and ask you to identify that.

A. This is a front view of my building taken from the west side of Kavanaugh Boulevard * * *

Mr. Bonner: Do you want me to place each of these in evidence again? We have had them marked for identification purposes.

Mr. Stubblefield: No, sir.

Mr. Bonner: These will be considered in evidence. That is Exhibit No. 12.

Continuing his direct examination, Bonner successively showed all seven pictures to Alexander, who explained what each one portrayed.

All exhibits except No. 11 are contained in the bound record, which is certified by the reporter and the chancery clerk. Exhibit 11, which is bulky, was sent up in a separate envelope bearing a certificate by the reporter that it 'was introduced during the course of the trial in the above styled cause of action.'

Taking the record as a whole, we must conclude that Exhibit 11 was not put in evidence. With respect to the first five exhibits the chancellor made a ruling in every instance: 'Let it (them) be introduced.' By contrast, Exhibits 6 through 18 were presented in quick succession and marked for identification only, 'without,' in the words of counsel, 'conceding their relevancy or competency.' Clearly it was contemplated, as is usually the case with reference to exhibits marked for identification, that a definitive ruling would be made as each exhibit was actually offered in evidence. Exhibit 11 was never so offered. The omission is understandable, for the exhibit was produced in the first instance by defense counsel. There...