*1 430
Plaintiff gen further that "defendants contends their waived subsequent eral plea avoidance; denial their of confession and hence, no except purported there was issue avoidance.” To so pleadings construe defendants’ would technical violate be too allegations the rule in Section 1929. The stated Revised Statutes concerning prosecution only uniting a plaintiff amounted specific- denial same answer as authorized in Section 7 The affirmative 76, Revised Statutes 1929. defense release matter with a denial. was not statement new inconsistent Ry. (Mo. Kansas City v. Term. Co. App.), S. [Thurston 620; 237; Milner, App. see, Missouri Plead Ruff v. Mo. also Houts 179-180, pp. & true Practice, Especially sec. would 104.] here, alleged party neither since it was release recited that "admit, any manner, party.” thereby the claims the other does denial of exactly Pleas amount to both admission thing same of course and that the situation are inconsistent Club, Jockey plaintiff. inf. v. Delmar Hadley cases cited ex [State Indemnity Corp., 539; Employers’ Mo. 98 S. W. Cowell v. special pleas (2d) 326 Mo. We S. W. hold 705.] up also set not affect ’denial. Defendants here do any with be inconsistent but that could not Statute of Limitations Causey, 8 Mo. Burk, 675; 80 Mo. v. other defense. v. Schaefer [May App. Mo. 142; Heath, 38 App. v. Schuchman 280.] Ferguson and remanded. judgment is reversed and cause Bradley, CC., concur. Ci, adopted foregoing opinion by CURIAM:—The PER Hyde, J., Lucas, concur, except judges court. All
as the sitting. Livery Undertaking Com A. & Hoffmeister v. Mueller Oscar C. 775. (2d)W. Appellant S. Corporation, pany, . 121 One, 1938. November Division *2 E. Mooney for appellant. John Hancock George Scott E. Johnson respondent. for validity of constitutional
BRADLEY, C . This cause raised St. City of zoning ordinance an amendment altering structurally Louis, enjoin defendant from also seeks mortuary. was submitted building a The cause adding used as or found agreed of facts. The court on an statement to the trial enjoined de- unconstitutional and void the amendment was appealed. asked. Defendant fendant line 41 feet the east property fronting residence on owns Plaintiff alley. extending feet, inches to an Compton east Avenue undertaking operated mortuary Defendant, many years, has or city, place office and of business business, principal with its feet, fronting Broadway, owns 68 inches South and also at 7814 1/8 feet, 4 Compton, extending inches line of east east on undertaking alley, has, operated mortuary since fronting February, the 30 feet thereon. Prior business Compton, joining plaintiff’s property on the the east line of *3 Yorwald, on the north, south, and defendant’s was one and owned 21, 1933, acquired defendant Yor- occupied as a residence. March the street, Boulevard, an ex- property. wald Bellerive east west and city’s property. along general tends the south side defendant’s The of zoning passed 1926, in the in ordinance was and of the block whole property plaintiff the of and defendant as which lies was classified placed general and a property residence residence district. The zoning provided, (Sec. 8) however, ordinance that ex- a lawful use isting although at time adoption ordinance, the of zoning the ordinance, might not conform to the the provisions such use did of continue, provided might throughout that and such extended use building, provided made, the that “no structural alterations were ’’ except required by those law or ordinance. January 11, 1934, application made the city defendant to build- permit commissioner for a “alter to and to make additions the present mortuary located on the northwest corner and of Bellerive Compton Avenues.” The purpose was not only building to alter the mortuary, then in a use as but to remove the Yorwald residence build- ing and on lot an mortuary. erect this addition the building to The permit. commissioner the appealed refused Defendant from the de- building cision of the commissioner to the of adjustment, board February granted 7, 1934, on permit. this board the 1934, March 9, filed, plaintiff court, in the circuit petition a for writ of certiorari. petition against The W. Ludwig al., was J. et constituting the board adjustment. issued, of Certiorari writ was and the board filed re- certiorari was turn the cause submitted. Thereafter, and on 26, 1934, the the trying December cause, certiorari reversed the granting permit, defendant the original decision ordered that the commissioner, building refusing of decision the the permit, be rein- its carry out enjoined proceeding stated, defendant “from ' n ” ' (cid:127) . building. of said plans alteration structural the pending in 1934, case was the certiorari June and while zoning ordi- court, aldermen the the amended circuit board of commonly spot zoning bill known as nance, by passing what is fronting property on changed all of ordinance, which defendant’s commercial classi- Compton Avenue residence classification from ordinance, zoning mayor spot vetoed July 12, the fication. the passed of aldermen the ordinance January but on the board ordinance, zoning that is validity spot of veto. It is the over the present the involved in cause. ordinance, is, amendment to the zoning spot the ordinance, zon- is amend
zoning purpose its the recites district as “by extending commercial on the ing ordinance the shown ordinance, in- map, accompanying amended, said use district description ground,” then defend- parcel of follows of clude a spot fronting Compton Section the property Avenue. ant’s emergency “this clause, providing zone ordinance ordinance is necessary preservation peace, being public for the immediate safety, exist, and this emergency hereby health declared immediately .approval upon ordinance shall become effective Mayor.” spot purpose While zone that its ordinance recites district, map, is to extend the commercial part an exhibit agreed statement, extended, district was shows the commercial in- but merely classed as commercial property defendant’s change, residential, stead that before and after defendant’s property very was in midst of a residential district as fixed general zoning ordinance. changing zoning ordinance,
Defendant that the spot contends *4 property commercial, defendant’s which from residential to aixd under proposes structurally original it ordinance build mortuary to alter its thereto, add the occupy and an'addition addition which would lot, is a Vorwald amendment to the zoning valid ordinance. enabling (Sees. 1929, Ann., The seq., act 7259 Mo. Stat. et R. S. secs. 7259, pp. seq.), authorizing general zoning city pass et the the to ordinance, careful, serious, intelligent “contemplates the same and required of an to zoning consideration amendment as in ordinance is preparation original the zoning.” enactment of ordinance on [Wippler 780, (2d) 409, Hohn et 341 Mo. W. al., v. 110 S. l. c. 411.] general zoning city the The ordinance established in these districts: Residence, multiple dwelling, industrial, commercial, and unrestrict primarily duty city say It of the to in ed. is the any district what city placed, in the should be area “if a classification reasonably is doubtful, judgment court the of the will not be. substituted for th e city.” case, supra, judgment of the [Wippler (2d) S. W. l. c. 284, 172 al., Ill.
411; Michigan-Lake Bldg. Corp. et v. Hamilton 710, l. N. E. c. 715.] “It is Bldg. it is Michigan-Lake Corp. said:
In the ease zoning func the province municipality the of the which primarily to the use tion draw the demarcation as to is committed to line of it assigned is placed, be purpose property to which shall the duty courts interfere with dis province neither the nor to invested, clear absence of a with which such bodies are in cretion ’’ A note case showing abuse that discretion. Illinois of an Review, be 25 Ill. Law 817. will found in case, supra, present Wippler was case. There the The like the change zoning Louis as to ordinance of St. amended so was dwelling” “multiple from to “com the classification of two lots- change mercial,” (110 (2d) said that S. l. c. indicated that was made 411) that the record the reclassification under antagonistic general welfare, “and a favor solely influences as it held amend to defendant Holm.” And was in ease that the arbitrary changing ment classification of the lots was two Wippler ap in And what is said case as above unreasonable. is, quite in pears, think, applicable present we ease. City
Defendant
Lime & Cement
cites Glencoe
Co. v.
of St. Louis
al.,
(2d)
et
341 Mo.
S.
108 W.
and State ex rel. Oliver-Cadil
Christopher,
Mo.
lac Co. v.
We hold the classification property made of defendant’s present ease the spot ordinance was, zone facts, under the arbitrary reason, and without substantial and that said ordinance is void. judgment
It affirmed, that the should be follows and it is so ordered. *5 Ferguson Hyde, CC., concur. PER foregoing opinion CURIAM:—The Bradley, C., adopted
;as judges court. All concur.