Robinson v. Weiner

BRUNOT, J. This is a suit by citizens of Shreveport and the city of Shreveport to enjoin the defendants from' constructing business buildings of any kind upon lots 16, 17, 18, 19, 20, 21, and 22 of the Moreland and Dickson subdivision of the city of Shreveport. A preliminary injunction issued; but, after a trial, the preliminary injunction was dissolved and the demands of plaintiffs were rejected at their, costs. From this judgment they have appealed. From the record it appears that defendants leased the property described in the petition to F. J. Zuzak for the purpose of erecting thereon a, filling station and store buildings. Zuzak made application to J. T. Har *981 ris, the building inspector of the city of Shreveport, for the issuance of permits for the construction of these buildings. The permits were refused upon the ground that certain ordinances purporting to zone the city-prohibited the construction of business buildings upon the said described lots. Zuzak thereupon proceeded, by mandamus, to compel the building inspector to issue the permits he had applied for. After a trial of the matter, the mandamus was made peremptory and the building inspector issued the permits in the name of the owner of the property. There was no appeal from this judgment, and it is therefore a final judgment. The plaintiffs then instituted this suit, in which they pray for an injunction restraining the defendants from constructing the buildings authorized by the permits. After this suit was filed, the mayor of the city instructed the building inspector to withdraw the permits, upon the theory that the mandamus suit was brought by the lessee of the property and the permits had been issued in the name of the owner of the property. After a trial the district judge avoided the ordinances relied upon by plaintiffs and dismissed their suit. Defendants excepted to the suit upon the ground that the petition did not disclose a cause or right of action. This exception does not appear to have been passed upon by the district judge. In view of the finality of the judgment in the mandamus proceedings, we think the plaintiffs were foreclosed thereby, and their only remedy was to appeal from that judgment or to seek to annul it by a direct action. This view disposes of the case and renders it unnecessary to consider the attack upon Ordinances No. 7 of 1922, No. 235 of 1923, and No. 110 of 1924. We may say, however, that these ordinances were held to be illegal in State ex rel. Mrs. Blanche Dickason v. J. T. Harris, Building Inspector of the City of Shreveport, 105 So. 33, 1 No. 26780 of the docket of this court, decided this day. Eor these reasons we are of the opinion that the judgment appealed from is correct, and it is therefore affirmed, at appellants’ cost. O’NIELL, C. J., is of the opinion that Ordinance No. 7 of 1922 is valid. Footnotes [1] Ante, p. 974.