Ackerman v. Southern Arizona Bank and Trust Co., Civil 3610

• Citation: 50 P.2d 949,46 Ariz. 343
• Decision Date: 28 October 1935
• Docket Number: Civil 3610
• Parties: ABRAHAM ACKERMAN, Appellant, v. SOUTHERN ARIZONA BANK AND TRUST COMPANY, a Corporation, Appellee
• Court: Arizona Supreme Court

50 P.2d 949

46 Ariz. 343

ABRAHAM ACKERMAN, Appellant, v. SOUTHERN ARIZONA BANK AND TRUST COMPANY, a Corporation, Appellee

Civil No. 3610

Supreme Court of Arizona

October 28, 1935

APPEAL from a judgment of the Superior Court of the County of Pima. M. T. Phelps, Judge. Judgment affirmed.

Mr Abraham Ackerman, Appellant, in pro. per.

Mr James R. Dunseath, for Appellee.

OPINION

McALISTER, J.

The Arizona Bank and Trust Company brought an action against Abraham Ackerman in which it sought an order restraining him from instituting a complaint or other action against it, its officers, agents or employees, and from a judgment granting the relief prayed for the defendant has brought the matter here for review.

It appears from the complaint that on June 22, 1920, and prior as well as subsequent thereto, the defendant was a customer of plaintiff, an institution engaged in the business of banking in the city of Tucson, Arizona; that he deposited with it certain moneys obtained from rents and other sources and that these moneys were paid out on checks drawn by the defendant and others in privity with him; that a final accounting of these moneys, showing that they had all been accounted for and that nothing was due him, was rendered him but, notwithstanding this, he instituted an action in the superior court of Pima county, Arizona, on February 2, 1931, alleging that plaintiff was indebted to him in the sum of $8,976.44; that the complaint failed to state intelligently a cause of action and for that reason the trial court dismissed it, its action in so doing being upheld on appeal. Ackerman v. Southern Arizona Bank & Trust Co., 39 Ariz. 484, 7 P.2d 944.

The complaint discloses further that on June 15, 1932, the defendant filed another action in which, after reciting, substantially, the same facts, he alleged that plaintiff had appropriated the moneys described therein and used them without the authority or consent of the defendant, and that the statement made to him accounting for them was false. This matter was tried in April, 1933, before a jury which rendered a verdict in favor of the bank, its finding being that it had made a complete accounting to Ackerman, and this verdict, as well as the judgment entered thereon, was affirmed by this court. Ackerman v. Southern Arizona Bank & Trust Co., 43 Ariz. 94, 29 P.2d 150.

The averments show further that in December, 1933, following the refusal of the county attorney of Pima county to prosecute and the justice of the peace of the Tucson precinct to issue a warrant for the arrest of Mrs. Eleanor Hill, an employee of the Southern Arizona Bank & Trust Company, for the crime of perjury alleged by Ackerman to have been committed when she was testifying in the case just mentioned, Ackerman applied to the superior court of that county for a writ of mandamus requiring the county attorney and the justice of the peace to proceed in the matter. The court refused to grant the writ and its action was affirmed by this court in Ackerman v. Houston, 45 Ariz. 293, 43 P.2d 194.

The complaint alleges further that in addition to the foregoing actions the defendant, Ackerman, has filed in the superior court of Pima county the following complaints, alleging the same matters set up in the cases cited above and seeking the same relief, an accounting; one in July, 1933, against Fred J. Stewart, an officer of the Southern Arizona Bank & Trust Company, and the other in May, 1934, against Mrs. Eleanor Hill, an employee. These actions are still pending and Ackerman is continuing to annoy and embarrass the defendants in them and this plaintiff by filing motions and other pleadings therein.

It is further averred that all these actions have been brought maliciously and without probable cause for the purpose of harassing, annoying and vexing the plaintiff, its officers and employees; that the plaintiff has suffered irreparable damage to its credit and has been compelled to expend its funds in defending such actions; that this plaintiff has exhausted its legal remedies, the defendant Ackerman, being unable to respond in...