Denver v. Denver Buick

Full title: CITY AND COUNTY OF DENVER, ET AL. v. DENVER BUICK, INC., ET AL

Court: Supreme Court of Colorado. En Banc

Date published: Dec 16, 1957

319 P.2d 490 (Colo. 1957)

319 P.2d 490

Opinion

No. 18,119.

Decided December 16, 1957. Rehearing denied January 13, 1958.

Action challenging validity of zoning ordinance. Judgment for plaintiffs.

Writ of Error Dismissed.

1. APPEAL AND ERROR — Moot Question — Dismissal. Where an action challenging the validity of a zoning ordinance is pending on writ of error, and prior to determination a new ordinance is adopted replacing the challenged one, the questions presented to the Supreme Court are moot, and the writ of error will be dismissed.

Error to the District Court of the City and County of Denver, Hon. William A. Black, Judge.

Mr. JOHN C. BANKS, Mr. EARL T. THRASHER, Mr. HANS W. JOHNSON, for plaintiffs in error.

Mr. THEODORE EPSTEIN, Messrs. CREAMER CREAMER, for defendants in error Denver Buick, Inc., Lou Cohan, Mollie Cohan and Salco Corporation.

Messrs. GRANT, SHAFROTH TOLL, for defendant in error Rainbo Bread Company.

Mr. DAYTON DENIOUS, Mr. OMER GRIFFIN, for defendants in error Weaver-Beatty Motor Company and Roy J. Weaver.

MR. JUSTICE SUTTON delivered the opinion of the Court.

THE judgment sought to be reversed held Zoning Ordinance No. 16, Series 1955, of the City of Denver void. It now abundantly appears from the record, plaintiff in error's brief and statement of counsel for plaintiff in error, made before this court at the time of oral argument, that Ordinance No. 16, Series of 1955, has been replaced in its entirety by Ordinance No. 392, Series 1956, and that Ordinance No. 16 is no longer in force or effect.

Several matters are urged for reversal, only two of which we would deem pertinent if the case where not moot, They are: Is a declaratory judgment action the proper form of action to challenge the ordinance, and, was the public notice given adequate and valid?

Because the defendants in error were successful below and a new ordinance has since been passed to replace the challenged one, the questions presented are moot. See Cliff v. Bilett, 125 Colo. 138, 241 P.2d 437, and Bd. of Adjustment v. Iwerks, 135 Colo. 578, 316 P.2d 573. We therefore refrain from passing on the matters presented.

The writ of error is dismissed.