Appeal from the Circuit Court of Cook County; the Hon. CHARLES
S. DOUGHERTY, Judge, presiding. Judgment reversed.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 18, 1965.
This is an appeal from a judgment declaring that plaintiffs have the right to erect a 40-unit apartment building on premises zoned single family residential, and that defendant's zoning ordinance as applied to said premises is void. The case was appealed directly to the Supreme Court and was transferred to this court.
The issues presented are that the plaintiffs cannot maintain this action because none of them has sufficient interest in the subject property to erect an apartment building thereon, and that the trial court erred in holding City's zoning ordinance void, as applied to the subject property.
The subject property consists of three lots numbered 1, 2 and 3. The complaint alleges that lot 1 is owned by plaintiff Louis Spirrison; that lots 2 and 3 are owned by plaintiffs Nicholas T. Kioutas and Golfo Kioutas, his wife; that plaintiffs Leonard D. Falcone and Bernard R. Grizoff, Jr. are contract purchasers of the subject property, and that plaintiffs propose to erect an apartment building containing between 30 and 40 three and four-room apartments on the property.
The subject property is in an R1 single family residence district, the permitted uses for which are set forth in section 7.3-1 of the May 29, 1957 Amendment to the Zoning Ordinance of the City of Chicago (Municipal Code of Chicago, chap 194A, section 7.3-1) and has been so zoned since 1942. The only residential use permitted is one-family detached dwellings.
A certified copy of a warranty deed recorded June 7, 1950 showed that lot 1 was conveyed to Louis and Christine Spirrison for $10. On October 20, 1959 Louis Spirrison as seller entered into a real estate contract with Robert L. Sherman for the sale of lot 1 for $17,500. This contract was assigned on November 18, 1960 from Sherman to Leonard D. Falcone and Bernard R. Grizoff, Jr., plaintiffs herein. The consent of Spirrison is noted thereon for an extension to October 20, 1961 for consummation of the contract. As of June 17, 1963 Falcone and Grizoff had not been put in title under the contract.
Lot 1 is on the southeast corner of Harlem and Talcott Avenues. Harlem runs north and south. Talcott runs northwest and southeast. Lot 1 has a frontage of 136 feet on Harlem, 204.75 feet on Talcott to an alley east of Harlem, south on said alley for 26.8 feet, and then west 175 feet to Harlem.
Lot 2 adjoins lot 1 on the south and lot 3 adjoins lot 2 on the south. Lots 2 and 3 each have a frontage of 50 feet on the east side of Harlem and run 175 feet east to an alley east of Harlem Avenue. Lots 2 and 3 were conveyed by deed dated May 24, 1926 to Nicholas T. Kioutas for $1,948 and other consideration. On September 30, 1960, Nicholas T. and Golfo Kioutas entered into a contract as sellers and Leonard D. Falcone and Bernard R. Grizoff, Jr. agreed to purchase lots 2 and 3 for $26,690.68. A rider attached to the contract provides that if the contract is not consummated in a year it becomes null and void, and that the purchasers have the right to institute, at their own expense, necessary proceedings for the purpose of rezoning said lots. As of June 17, 1963 Falcone and Grizoff had not been put in title under the above contract.
[1-4] As to defendant's first point that the plaintiffs cannot maintain this action because none of them has sufficient interest in the subject property to erect an apartment building, we are in somewhat of a quandary as to why Louis Spirrison, Nicholas T. Kioutas and Golfo Kioutas, the holders of legal title, do not have sufficient interest in the subject property to attack the zoning. Any owner of property has a right to question the validity of a zoning ordinance restricting his use of the property. He may not be entitled to the relief he seeks, but we know of no rule of law that would prevent him from seeking relief. The defendant argues that since the contract purchasers are the ones who desire to construct the apartment building and since the record is not clear as to whether their contracts are still in force, that none of the plaintiffs in this action has sufficient interest to attack the zoning. The contract sellers as owners of the property, assuming the contracts have terminated, certainly have a right to question the validity of the zoning ordinance whether they do or do not propose to construct a 30 or 40 apartment building on the premises. Furthermore, that issue was not raised in the trial court. In the defendant's objections to the master's report the defendant objected to paragraph third of the report in the following language:
"1. To the finding stated in paragraph `third,' page 8, that plaintiffs Spirrison and Kioutas are legal owners of the subject property. The evidence is that such ownership is subject to a contract right to purchase said property by Leonard Falcone and Bernard Grizoff, and, further, that the real parties in interest in this suit are Falcone and Grizoff; and they are the parties who propose to use the subject property."
After hearing objections to the master's report the master sustained the foregoing objection 1. The defendant by this objection induced the master to find that the property was subject to a contract right held by Leonard Falcone and Bernard Grizoff. It is a fundamental rule of law that a party cannot invite error and later complain of the same error. If the contracts held by Falcone and Grizoff had expired, the defendant should have raised that point during the trial of this case before the master, and should not have invited the master to change his report to reflect that the ownership is subject to a contract right held by Falcone and Grizoff to purchase the property, and also should not have invited the master to change his report to read that the real parties in interest were Falcone and Grizoff. A party will not be permitted to argue on appeal a defense not interposed by his answer, nor can the theory upon which a case is tried be changed upon review. While an appellee is not limited in the scope of the review as is an appellant, nevertheless, the review cannot go beyond the issues appearing in the record. Consoer, Townsend & Associates v. Addis, 37 Ill. App.2d 105, 185 N.E.2d 97; Bergmann v. Multi-State Inter-Ins. Exchange, 39 Ill. App.2d 468, 189 N.E.2d 49.
During the hearing before the master defendant's attorney made the following statement: "I don't, by virtue of this line of questioning, question the right to sue. I do not question the right to sue at all."
Under the law and the facts as presented to us, the plaintiffs' right to maintain the action cannot be questioned for the first time on review.
It will be necessary to set forth additional facts brought out at the hearing in order to decide the second ...