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Kubby v. Hammond

Supreme Court of Arizona

September 27, 1948

KUBBY
v.
HAMMOND

Page 135

Appeal from Superior Court, Maricopa County; M. T. Phelps, Judge.

Judgment reversed, and cause remanded with direction to dismiss complaint.

William C. Eliot and John M. Levy both of Phoenix, for appellant.

Jennings, Strouss, Salmon & Trask, of Phoenix, for appellee.

Udall, Justice. Stanford, C. J., and LaPrade, J., concur.

OPINION

Udall, Justice.

Page 136

[68 Ariz. 19] This is an appeal from a judgment perpetually enjoining and restraining the defendant, David Kubby (appellant), from constructing or operating an automobile wrecking plant on certain premises owned by him at 1333 East Washington Street in Phoenix, Arizona.

The essential facts are these: Defendant for some 2 1/2 years prior to this litigation had been operating an automobile wrecking plant, as well as dealing in used cars, under a state license, at his established place of business, 1330 East Washington Street. In an expansion program, defendant acquired three lots (1333 East Washington Street) which lie directly south and across the street from his principal place of business. On May 20th, 1946, the division of Motor Vehicles, Arizona Highway Department, issued to defendant supplemental licenses to operate branches of both of said businesses at this newly acquired location. Immediately thereafter he moved a half dozen cars [68 Ariz. 20] thereon, which were intended for dismantling and sale of their parts. When notices were posted that defendant had applied for a permit to construct a temporary tin and wood office building on these premises plaintiff Hammond (appellee) on May 25, 1946, filed suit seeking an injunction to restrain defendant from constructing a building to be used as an automobile wrecking plant or from using the premises for such purposes. The gravamen of the complaint was that plaintiff is the owner of and has an established residence upon an adjoining lot lying west of defendant's premises, that all of this area was zoned for "Business B District Uses" by ordinance No. 1564 adopted by the City of Phoenix on June 25, 1930, and that the operation of the business proposed by defendant is in violation of and is not permitted under Section X of said zoning ordinance. Furthermore it was alleged that loud noises will result from the proposed use of said premises which will interfere with plaintiff's peaceable enjoyment of his home and cause a depreciation in the value thereof.

On July 9, 1946, the City Commission of Phoenix amended this zoning ordinance so as to place the defendant's property in a "Business A Zone", and concededly a wrecking yard could not thereafter lawfully operate in such zone unless the business had been commenced prior to the adoption of the amended ordinance.

Thereafter on August 12, 1946, plaintiff filed an amended complaint in two counts. The first count alleged substantially the same facts as the original complaint but added the fact of rezoning the area to "Business A Uses." The second count alleged the defendant's proposed business would constitute a nuisance. The prayer was for injunctive relief only, no damages being asked.

Defendant's motion to dismiss the amended complaint was denied and upon the issues framed by his answer this equity matter came on for trial before the court

Page 137

sitting with a jury. The two interrogatories submitted to them were answered by the jury favorably to the plaintiff's contention and after a denial of defendant's motions for judgment notwithstanding the verdict and for a new trial, the court entered judgment for plaintiff and the matter is now brought before us for review.

The trial court made no findings of fact or conclusions of law, though it adopted the jury's answers to the interrogatories. In the final analysis the decision was necessarily the decision of the court as the verdict of the jury is only advisory in an equity matter. Section 21-1010, A.C.A.1939.

It is, of course, the universal rule that all presumptions are in support of the judgment or decree, and the appellate court in reviewing the sufficiency of the evidence to sustain a verdict or judgment [68 Ariz. 21] will consider the evidence in the light most favorable to the successful party. Commercial Securities Corp. Consol. v. Babbitt Motor Company, 36 Ariz. 438, 286 P. 820; New York Indemnity Co. v. May, 37 Ariz. 462, 295 P. 314; Spann v. Meidinger, 37 Ariz. 480, 295 P. 321.

Where findings of fact have not been made the rule is that the judgment should be affirmed if there is any theory of the case upon which such judgment can be sustained and any reasonable evidence in the record supporting such theory. State Tax Comm. v. Magma Copper Co., 41 Ariz. 97, 15 P.2d 961; Morgan v. Krook, 36 Ariz. 133, 283 P. 287.

While the defendant (appellant) has presented some eleven assignments of error and seven propositions of law, we believe that these may be resolved into three questions: (a) Was the conduct of defendant's business of operating an automobile wrecking yard at 1333 E. Washington Street in violation of Section X of Phoenix City Ordinance 1564? If this question be answered in the negative then (b) was such business actually in operation between May 20, 1946, and the time when the area was rezoned on July 9, 1946, for "Business A District ...


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