{ "id": 8722597, "name": "J. D. WALTHOUR et al v. L. Julian ALEXANDER et al", "name_abbreviation": "Walthour v. Alexander", "decision_date": "1967-12-04", "docket_number": "5-4335", "first_page": "621", "last_page": "627", "citations": [ { "type": "official", "cite": "243 Ark. 621" }, { "type": "parallel", "cite": "421 S.W.2d 613" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "104 S. W. 172", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1907, "opinion_index": 0 }, { "cite": "83 Ark. 491", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1527162 ], "year": 1907, "opinion_index": 0, "case_paths": [ "/ark/83/0491-01" ] }, { "cite": "187 S. W. 628", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1916, "opinion_index": 0 }, { "cite": "125 Ark. 597", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "146 S. W. 125", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "103 Ark. 201", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1351975 ], "opinion_index": 0, "case_paths": [ "/ark/103/0201-01" ] }, { "cite": "163 S. W. 1151", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1914, "opinion_index": 0 }, { "cite": "111 Ark. 196", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1540427 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/ark/111/0196-01" ] }, { "cite": "232 Ark. 878", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1694068 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/ark/232/0878-01" ] } ], "analysis": { "cardinality": 569, "char_count": 9096, "ocr_confidence": 0.521, "pagerank": { "raw": 1.291846294948534e-07, "percentile": 0.6199905863237587 }, "sha256": "9e9f149bd03c06a0306c4083488872bab1b32b17ebe9d33d870c22ba2baa790f", "simhash": "1:f34dd6f692868714", "word_count": 1528 }, "last_updated": "2023-07-14T18:02:41.806727+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Harris, C. J., and Byrd, J., dissent and would grant rehearing." ], "parties": [ "J. D. WALTHOUR et al v. L. Julian ALEXANDER et al" ], "opinions": [ { "text": "George Rose Smith, Justice.\nThis is a zoning dispute. The appellee Alexander owns a triangular piece of property on the southwest corner of the intersection of Van Bur\u00e9n 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\u2019s 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\u2019s 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\u2019s action was (I) illegal, (II) arbitrary, and (III) barred by limitations.\nI. Illegality. Apparently the Board reclassified Alexander\u2019s property as \u201cF Commercial\u201d 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\u2019s 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.\nWe 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., 111 Ark. 196, 163 S. W. 1151 (1914); National Annuity Assn. v. McCall, 103 Ark. 201, 146 S. W. 125, 48 L.R.A. (n.s.) 418 (1912).\nThus 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.\nDuring the examination of the plaintiffs\u2019 first two witnesses five exhibits were received in evidence. In each instance the court made a ruling. This excerpt is typical:\nMr. Stubblefield: Could I have the one that shows both marked as Plaintiffs\u2019 Exhibit No. 2 and the second one as Exhibit No. 3?\nThe Court: Let them be introduced.\n(Thereupon, said pictures were marked for identification and received in evidence.)\nA few minutes later, after the plaintiffs\u2019 fourth witness left the stand, the record reflects the following:\nMr. 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 \u00e1way, and he was kind enough to consent we could do that.\nCounsel 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 \u2014 the zoning ordinance and seven pictures \u2014 which were marked for identification as Exhibits 11 through 18.\nThereafter the reporter\u2019s 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:\nMr. Bonner: I hand you here Exhibit No. 12 and ask you to identify that.\nA. This is a front view of my building taken from the west side of Kavanaugh Boulevard . . .\nMr. Bonner: Do you want me to place each of these in evidence again? We have had them marked for identification purposes.\nMr. Stubblefield: No, sir.\nMr. Bonner: These will be considered in evidence. That is Exhibit No. 12.\nContinuing his direct examination, Bonner successively showed all seven pictures to Alexander, who explained what each one portrayed.\nAll 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 \u201cwas introduced during the course of the trial in the above styled cause of action.\u201d\nTaking 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: \u201cLet it [them] be introduced.\u201d By contrast, Exhibits 6 through 18 were presented in quick succession and marked for identification only, \u201cwithout,\u201d in the words of counsel, \u201cconceding their relevancy or competency.\u201d 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 was no reason for him to put the zoning ordinance in evidence, because it was essential only to his adversaries\u2019 case \u2014 not to that of his own client.\nWe should point out that Exhibits 12 through 18 stand in a different position. Those pictures were shown to the witness Alexander and commented on by him. In such circumstances a formal ruling by the court was not necessary. J. W. York & Sons v Powell, 125 Ark. 597 (mem.), 187 S. W. 628 (1916); School Dist. No. 68 v. Allen, 83 Ark. 491, 104 S. W. 172 (1907). But there was no similar actual use of Exhibit 11 in the examination of any witness. Nor does the reporter\u2019s certificate on the envelope containing the ordinance, stating that the exhibit was \u201cintroduced,\u201d cure the defect. That certificate does not purport to be a transcription of the reporter\u2019s notes. The reporter\u2019s personal belief that the exhibit was introduced cannot take the place of a ruling by the court.\nCounsel for the appellants did not file a reply brief; so we do not know what his answer to the appellee\u2019s argument might be. We have not overlooked, however, the possible contention that (a) Exhibit 11 was produced by the appellee, (b) he thereby avouched its accuracy, (c) the appellants make no objection to the exhibit, and (d) therefore it should be considered by this court.\nWe recognize the force of that reasoning and do not imply that it is unsound. The trouble is that the appellants, in presenting their argument on the issue of illegality, also rely upon Exhibits 6, 7, 8, and 9 in their effort to show that the appellee\u2019s pick-up station constitutes a nonconforming use with respect to which structural alterations are prohibited. Exhibits 6 through 9 were, like Exhibit 11, not put in evidence. But, unlike 11, Exhibits 6 through 9 were produced by the appellants and therefore were not avouched by the appellee. Hence even a holding that Exhibit 11 is properly before us would not dispel the uncertainty that confronts us with respect to the true zoning classification of the property in issue.\nII. Arbitrariness. This and' the third point do not call for an extended discussion. The plaintiffs attempted to prove that the proposed addition to the pickup station would create a traffic hazard at the intersection and would prevent passing motorists on Kava-naugh from seeing the plaintiffs\u2019 places of business, with a consequent loss of patronage. The plaintiffs\u2019 testimony about the traffic hazard, given by lay witnesses, was more than offset by the testimony of the only expert witness who testified, DeNoble, who appeared for the defense. We can attach no weight to the fact that the enlargement of Alexander\u2019s building may obstruct the public\u2019s view of the appellants\u2019 shops, for, in the absence of proof that the addition is illegal, there is no basis for saying that Alexander is not entitled to use his property in the way that is proposed.\nIII. Limitations. It is argued by the appellants that a petition similar to this one was denied in 1959, that Alexander took an appeal from that denial, that he took a nonsuit in the circuit court, and that he failed to refile his suit within a year. A sufficient answer to this contention is that a zoning board may .entertain successive applications for the same relief, especially when there is a showing of changed conditions. McQuillin, Municipal Corporations, \u00a7 25.275 (1965). It appears that Alexander\u2019s present application is for permission to construct an addition materially smaller than the one involved in the prior proceeding. That difference may well have been the change in conditions which induced the Board to change its mind.\nAffirmed.\nHarris, C. J., and Byrd, J., dissent and would grant rehearing.", "type": "majority", "author": "George Rose Smith, Justice." } ], "attorneys": [ "II. B. Stubblefield, for appellant.", "Thomas J. Bonner, for appellee." ], "corrections": "", "head_matter": "J. D. WALTHOUR et al v. L. Julian ALEXANDER et al\n5-4335\n421 S. W. 2d 613\nOpinion delivered December 4, 1967\n[Rehearing denied December 18, 1967.]\nII. B. Stubblefield, for appellant.\nThomas J. Bonner, for appellee." }, "file_name": "0621-01", "first_page_order": 643, "last_page_order": 649 }