City and County of Denver v. Denver Buick

319 P.2d 490 (1957)

The CITY AND COUNTY OF DENVER, a Municipal Corporation, and John D. McLucas, as Zoning Administrator of the City and County of Denver, Plaintiffs in Error, v. DENVER BUICK, Inc., a Colorado Corporation; Mollie Cohan, Lou Cohan, and Salco Corporation, a Colorado Corporation; Rainbo Bread Company, a Delaware Corporation; Weaver-Beatty Motor Company, and Roy J. Weaver, Defendants in Error.

No. 18119.

Supreme Court of Colorado. En Banc.

December 16, 1957.

Rehearing Denied January 13, 1958.

*491 John C. Banks, Earl T. Thrasher, Hans W. Johnson, Denver, for plaintiffs in error.

Theodore Epstein, Creamer & Creamer, Denver, for defendants in error Denver Buick, Inc., Lou Cohan, Mollie Cohan, and Salco Corporation.

Grant, Shafroth & Toll, Denver, for defendant in error Rainbo Bread Co.

Dayton Denious, Omer Griffin, Denver, for defendants in error Weaver-Beatty Motor Co. and Roy J. Weaver.

SUTTON, Justice.

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16, Series of 1955, has been replaced in its entirety by Ordinance No. 392, Series 1956, and that Ordinance No. 16 is no longer in force or effect.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 were 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 Board of Adjustment of Adams County v. Iwerks, 135 Colo. ___, 316 P.2d 573. We therefore refrain from passing on the matters presented.

The writ of error is dismissed.