O'Dell v. State ex rel. Patterson

• Decision Date: 25 June 1959
• Docket Number: 7 Div. 400
• Parties: I. S. O'DELL et al. v. STATE of Alabama ex rel. John PATTERSON, Attorney General.
• Court: Alabama Supreme Court

Page 164

117 So.2d 164

270 Ala. 236

I. S. O'DELL et al. v. STATE of Alabama ex rel. John PATTERSON, Attorney General.

7 Div. 400.

Supreme Court of Alabama.

June 25, 1959.

Rehearing Denied Jan. 21, 1960.

S. Palmer Keith, Jr., Birmingham, Wallace L. Johnson, Mibile, and Knox, Jones, Woolf & Merrill, Anniston, for appellants.

John Patterson, Atty. Gen., Robt, P. Bradley, Asst. Atty. Gen., and Guy Sparks, Special Asst. Atty. Gen., for appellee.

LAWSON, Justice.

The appeal is from a decree overruling a demurrer to a bill in equity, as amended, which will be referred to hereafter simply as the bill.

The State of Alabama, in one bill, seeks to enjoin more than twenty loan 'companies' in Calhoun County from continuing in the 'loan shark business,' to use the language of the bill, on the ground that the manner in which such businesses are conducted constitutes a public nuisance.

In brief filed here the appellants, the respondents below, concede that the averments of the bill are sufficient 'to charge each of the respondents with an activity which could be enjoined as a public nuisance under the decisions of the Supreme Court of Alabama.' The decisions referred to are State ex rel. Embry v. Bynum, 243 Ala. 138, 9 So.2d 134, and Larson v. State ex rel. Patterson, 266 Ala. 589, 97 So.2d 776.

But the appellants strenuously insist that the bill is multifarious and misjoins parties respondent and that the trial court erred in failing to sustain the grounds of the demurrer which took those points. We will limit our review to such grounds, for it is well established that on an appeal from a decree overruling a demurrer to a bill in equity, we consider only the grounds of the demurrer argued in appellant's brief. Wade v. Glencoe Lumber Co., 267 Ala. 530, 103 So.2d 730.

Some of the business sought to be enjoined are corporations, others are partnerships and others are conducted by individuals. The corporations, the members of the partnerships, and the individual operators are all joined as parties respondent.

The bill is multifarious under our holdings in Lee v. City of Birmingham, 223 Ala. 196, 135 So. 314, and Birmingham Bar Association v. Phillips & Marsh, 239 Ala. 650, 196 So. 725, unless the bill sufficiently charges the respondents with a conspiracy.

In the Lee case, supra [223 Ala. 196, 135 So. 315], a bill in equity was filed by the City of Birmingham against Robert E. Lee and J. W. Dunham to condemn as contraband certain slot machines alleged to be gambling devices seized by the policy department of the City under authority of its ordinances and for the recovery of which the respondents had begun separate actions at law.

In the opinion in the Lee case we said: 'Places where devices are kept for the purpose of permitting persons to gamble with them are declared by statute to be common nuisances, and may be abated in equity by the state. Section 4281, Code.'

We reversed the action of the trial court in overruling the demurrer interposed to the City's bill on the ground that the bill was multifarious, saying in that connection in part as follows:

'The question of multifariousness is presented by the demurrer in this case. There are two individuals with no connection in respect to their transactions. Each is alleged to have operated machines alleged to be gambling devices. The machines have different names, are not alleged to have any similarity except that they are both gambling devices. Those of one were seized January 12, 1929, and of the other November 1, 1929. Each defendant has filed a separate suit in detinue for the recovery of his alleged property. The injunction bonds and writs are each separate, as though there was no connection. In fact, no connection is alleged or shown, except that each is charged with operating at a different time and place a nuisance consisting of a machine which is a gambling device. They are both controlled by the same principles of law. But the facts and transactions are not the same, and have no connection with each other. The machines of one may be shown by the proof to constitute a nuisance, and those of the other may not. Each is an entirely separate, distinct transaction between different parties, with no community of interest, except in the legal principles which are applicable. Multifariousness 'is described, generally, as the joinder of distinct and independent matters, thereby confounding them, or the uniting in one bill of several matters, perfectly distinct and unconnected, against one defendant, or the demand of several matters of a distinct and independent nature against several defendants in the same bill.' Truss v. Miller, 116 Ala. 494, 22 So. 863, 866. Otherwise expressed, it is said that, when distinct and unconnected matters are joined against several defendants, it is not necessary that all the parties have an interest in all the matters in controversy, but each defendant must have an interest in some of them, and they are connected with the others. Truss v. Miller, supra; Treadaway v. Stansell, 203 Ala. 52, 82 So. 12; Bentley v. Barnes, 155 Ala. 659, 47 So. 159; Henry v. Ide, 208 Ala. 33, 93 So. 860; Ellis v. Vandergrift, 173 Ala. 142, 155, 55 So. 781; Webb v. Butler, 192 Ala. 287, 68 So. 369, Ann.Cas.1916D, 815.

'It was said in our case of Roanoke Guano Co. v. Saunders, 173 Ala. 347, 355, 56 So. 198, 35 L.R.A.,N.S., 491, by way of a differentiation, that, if the equity of a bill is dependent upon the prevention of a multiplicity of suits, there must be more than a community of interest in the question of law and fact, but there must be a community of interest in the subject-matter (Southern Steel Co. v. Hopkins, 174 Ala. 465, 57 So. 11, 40 L.R.A.,N.S., 464, Ann.Cas.1914B, 692; Turner v. City of Mobile, 135 Ala. 73, 33 So. 132), but, if its equity rests upon some independent equitable remedy other than a multiplicity of suits, such as cancellation, discovery, accounting, or the like, community of interest in the subject-matter is not requisite, provided there is community of interest in the question of law and fact. That statement of the rule does not justify a joinder of the defendants in this case. There is no community of interest in a question of fact, though there may be in the question of law. There are two transactions, and they relate to different machines, different occasions and places of their operation, and different ownership. In the case last referred to above, each party had a separate claim occasioned by the same circumstances; each governed by the same principles of law and state of facts, involving only one transaction. No such situation is shown in this case.' 223 Ala. 197-198, 135 So. 315.

In Birmingham Bar Association v. Phillips & Marsh, supra, the Bar Association sought to put an end to the alleged practice of law in Jefferson County by unlicensed individuals, associations, and corporations connected with the insurance business. Demurrers were sustained by the trial court. On appeal we affirmed, saying in part as follows:

'Whether viewed as a proceeding under the Uniform Declaratory Judgment Act, as a bill of injunction in equity, or, as in substance and effect a proceeding in the nature of quo warranto, we are of opinion there is a misjoinder of causes of action and a misjoinder of parties respondent.

'Many parties, Insurance Companies engaged in the many lines of insurance, other than life insurance; adjustment bureaus and adjustment agencies set up to handle that part of the insurance business; independent adjusters, offering their services to insurers for regular or special employment, are joined in one suit on averments that separately and severally they have engaged in the practice of law in one or more of many ways set up in the numerous specifications.

'Accessory respondents, and individual respondents are charged with some relation to claim adjusting respondents, but the acts constituting the alleged practice of law, the cause of action as to each party brought into court, are alleged to have been done separately and severally; and each respondent is charged with one or more of a long series of acts set out in the specifications in general terms and alleged to be the practice of law.

'Such joinder of separate and distinct causes of action against numerous parties, combining many suits into one, wherein one defendant is wholly unconcerned with the facts as to the others, is a misjoinder of parties and causes of action in any and all proceedings at law and renders a bill in equity multifarious. That such practice does not contribute to the administration of justice, but to delay, confusion, and oppression is the experience of jurists written into procedural law here and elsewhere. That the several defendants are charged with a violation of the same law, and are sought to be dealt with by like remedial measures is not the test. McMahen v. Western Union Telegraph Co., 209 Ala. 319, 96 So. 265; Junkins v. Lovelace, 72 Ala. 303; Ford v. Borders, 200 Ala. 70, 75 So. 398; Alabama Great Southern R. R. Co. v. Prouty, 149 Ala. 71, 43 So. 352; City of Mobile v. McCown Oil Co., 226 Ala. 688, 148 So. 402; Lee v. City of Birmingham, 223 Ala. 196, 135 So. 314.' 239 Ala. 655-656, 196 So. 730.

We come now to a consideration of the averments of the bill which are designed to charge the respondents with concert of action.

Paragraph XIX of the bill reads:

'Complainant further alleges that the respondents have contrived, combined, confederated, and conspired among themselves to do the acts hereinbefore described and to bring about the public nuisance herein complained of.'

It is said by appellants that the averments of Paragraph XIX are more conclusions of the pleader which, even when considered in connection with the other averments of the bill are insufficient to charge the respondents with concert of action so as to permit them to be joined in an action of this kind.

We do not agree.

A conspiracy is a combination to accomplish...