Johnston v. Bridges

• Citation: 258 So.2d 866,288 Ala. 156
• Decision Date: 24 February 1972
• Docket Number: 1 Div. 677
• Parties: Vesta G. JOHNSTON and J. B. Johnston v. Ray D. BRIDGES et al.
• Court: Alabama Supreme Court

Page 866

258 So.2d 866

288 Ala. 156

Vesta G. JOHNSTON and J. B. Johnston v. Ray D. BRIDGES et al.

1 Div. 677.

Supreme Court of Alabama.

Feb. 24, 1972.

Rehearing Denied March 23, 1972.

J. B. Johnston, pro se.

Leon G. Duke, Armbrecht, Jackson & DeMouy, and W. Boyd Reeves, Mobile, for appellees.

McCALL, Justice.

The gist of this suit, filed in equity by Ray D. Bridges, Sheriff of Mobile County, Calvin S. Byrd, a school teacher, Leon G. Duke, Jr., an attorney at law, H. Few and Jere Benson, deputy sheriffs, as complainants, against J. B. Johnston and Vesta G. Johnston, husband and wife, as respondents, is to enjoin the prosecution of certain court actions, pending against them, or some of them, in the Circuit Court of Mobile County, Alabama, and to restrain and enjoin the respondents Johnstons from filing further litigation against the complainants.

More particularly, the bill alleges that on August 21, 1961, J. B. Johnston had Calvin S. Byrd arrested on a charge of issuing a worthless check, that upon Byrd's acquittal, the latter filed an action for malicious prosecution against Johnston, that he recovered a judgment for $31,630 against Johnston, which the Supreme Court affirmed, conditioned on Byrd's filing a remittitur, reducing the amount to $15,000, that Byrd filed the remittitur on April 28, 1966; that Calvin S. Byrd and his wife, Estelle Byrd, and J. B. Johnston and his wife, Vesta G. Johnston, executed a written agreement on June 28, 1966, to settle all differences between themselves, which then existed, or may have existed in the past, and to release and discharge all claims against all persons having to do with any and all litigation, involving Calvin S. Byrd and the Johnstons. This agreement is made a part of the bill of complaint. By its terms, the Byrds agreed to cancel the judgment in the malicious prosecution case, to dismiss a pending suit in equity against the Johnstons, and, in consideration of the payment by J. B. Johnston of $10,000 to Byrd, to convey to Vesta G. Johnston certain real property formerly owned by J. B. Johnston, which had been conveyed previously to Byrd by a sheriff's deed, dated May 25, 1964. The Johnstons agreed to pay the $10,000, to dismiss all pending cases against Calvin S. Byrd, and to release and discharge all claims against all court officials of Mobile County, all officers of the circuit court, all law enforcement officers and all other persons, having knowledge of, or executing official orders, in any and all litigation involving Byrd and Johnston. The bill alleges that the respondents since have filed numerous cases against the complainants and continue to file actions against them arising out of the differences which were settled and concluded by the settlement agreement of June 28, 1966, that the filing of these cases is an abuse of the court and an harassment and vexation of these complainants, causing them to suffer irreparable injury, and that they have no adequate remedy at law to stop the harassment, vexation and injury to them.

The bill avers that in one case, number 32,512, which complainants seek to enjoin, the Johnstons claim property which has been the subject of a suit in the United States District Court that terminated adversely to the Johnstons and was affirmed by the Fifth Circuit Court of Appeals on appeal, Johnston v. Byrd, 354 F.2d 982, 241 So.2d 839; that a second case, number 32,613, is substantially the same case as one, filed by the Johnstons against Leon Duke, as agent for Byrd, on the equity side of the court, to which a demurrer had been sustained, and that ruling affirmed by the Supreme Court, Johnston v. Duke, 286 Ala. 359; and that in a third case, number 29,045, the issue of malicious prosecution, counted on by J. B. Johnston, is the same cause of action set out in an earlier case between these same parties that resulted in a judgment for the complainants herein, and that it was affirmed by the Supreme Court, Johnston v. Duke, 284 Ala. 359, 224 So.2d 906. The complainants also allege in their bill that the claims, not of which the litigation in these three cases arises, were settled and concluded by the agreement of June 28, 1966, and that they were released and discharged by the appellants from these claims.

The first assignment of error is that the court erred in overruling appellants' demurrer to the petition seeking a temporary injunction. The first ground of this demurrer is that the complainants (appellees) have an adequate remedy at law in the defense of those pending cases that they complain about in their bill, viz.: 32,512, 32,613 and 29,043. The foregoing ground of demurrer is the equivalent of each of the two other grounds of demurrer, which are, respectively, (2) 'There is no equity in the bill,' and (3) 'The Complainants have an adequate remedy at law.' So, all grounds of the demurrer being equivalent, we will treat them together. The grounds are general, and therefore only test the equity of the bill. Rule 14, Alabama Equity Rules, Tit. 7, Appendix, p. 1219, Code of Alabama, Recompiled 1958; Alabama Lime & Stone Co. v. Adams, 222 Ala. 538, 133 So. 580; Wood v. Estes, 224 Ala. 140, 142, 139 So. 331; Percoff v. Solomon, 259 Ala. 482, 489, 67 So.2d 31. A general demurrer is properly overruled, if the bill contains any equity. Cherry Investment Corp. v. Folsom, 273 Ala. 575, 143 So.2d 181; Lauderdale County Board of Education v. Alexander, 269 Ala. 79, 110 So.2d 911.

In testing its sufficiency against a general demurrer, a bill to enjoin vexatious and harassing litigation contains equity. It is stated in Pomeroy's Equity Jurisprudence, Vol. 1, 5th Ed., 1941, § 261j, p. 551, as follows:

'The prevention of vexatious, oppressive and ruinous litigation is a frequent cause for the exercise of equity jurisdiction, and injunctions to restrain a multiplicity of suits in such cases are not only permitted, but favored, by the courts. A conspiracy to prosecute, by concert of action, numerous baseless claims against the same person for the wrongful purpose of harassing and ruining him, partakes of the nature of a fraudulent conspiracy, and the bringing of such suits will be enjoined to prevent a multiplicity of suits which would subject the plaintiff to enormous expense and inconvenience.'

In Meredith v. John Deere Plow Co. of Moline, Ill., 8th Cir., 1958, 261 F.2d 121, 124, cert. denied, 359 U.S. 909, 79 S.Ct. 586, 3 L.Ed.2d 574, the court had a similar injunction before it and stated:

'As to appellee's right to the injunction issued, the subjecting of another to repeated, baseless and vexatious suits at law on some particular subject matter is, without reference to other considerations, a sufficient ground for the issuance of an injunction against the perpetrator.

First State Bank v. Chicago, R.I. & P.R. Co., 8 Cir., 63 F.2d 585, 590, 90 A.L.R. 544; Lee v. Bickell, 292 U.S. 415, 421, 54 S.Ct. 727, 78 L.Ed. 1337. See also Martin v. Beaver, 238 Iowa 1143, 29 N.W.2d 555, 558.'

The language used by the Supreme Court of Minnesota in the case of Favorite v. Minneapolis Street Ry. Co., 253 Minn. 136, 91 N.W.2d 459, is appropriate here. There the plaintiff, a minor, was injured when struck by a street car. An action for damages was commenced in 1942. Upon petition of the father in November of 1942, the court ordered that an agreed settlement be approved and allowed, and also ordered that the defendants shall be finally absolved and acquitted from any further claims and demands by any person whomsoever on account of the accident and injuries to the minor. The parties stipulated that the action be dismissed, and the same was dismissed with prejudice. Subsequently, the plaintiff sought to reopen the litigation and proceed once again. In granting injunctive relief the court said:

'* * * Repeated litigation of a right which has been adjudicated with finality is without any legitimate purpose and constitutes a vexatious and oppressive harassment of a litigant in contravention of his right to a speedy and efficient administration of justice. If successive suits could be brought to litigate the same questions between the same parties or their privies as often as either should choose, remedial justice would soon become a mere mockery. It is generally recognized to be proper for a court to issue a permanent injunction to restrain the initiation of successive suits and proceedings to relitigate a cause of action--based on the same facts and with identical issues and parties--which has already been adjudicated with finality.'

We think that the equity in the complainants' bill is well laid in its averments, and in our opinion the court committed no error in overruling the respondents' general demurrer.

We deem it appropriate to state at this time that, in a case of this kind, the Supreme Court's jurisdiction is revisory and appellate solely. Worthington v. Worthington, 215 Ala. 447, 111 So. 224. The court will consider only rulings of the trial court, adverse to the appellants, which have been duly assigned as error. Thornton v. Tutt, 283 Ala. 72, 214 So.2d 425; N.A.A.C.P. v. State, 274 Ala. 544, 150 So.2d 677; Mulkin v. McDonough Construction Co. of Ga., 266 Ala. 281, 95 So.2d 921. The Supreme Court will not search out the record to determine whether or not the trial court might have erred in some particular where an appropriate assignment of error is lacking. Henry v. Jackson, 279 Ala. 225, 184 So.2d 133; Woods v. City of Tuscaloosa, 43 Ala.App. 626, 198 So.2d 306. An appellant must specify in his assignments of error the rulings of the trial court, adverse to him, that he would have the appellate court review. Greer v. Eye Foundation, Inc.,286 Ala. 63, 237 So.2d 456; Kinnon v. L. & N.R.R. Co., 187 Ala. 480, 65 So. 397; Wetzel v. Hobbs, 249 Ala. 434, 31 So.2d 639; Thomas v. Brook,274 Ala. 462, 149 So.2d 809. And, adverse rulings not specifically assigned, will not be considered on appeal. State v. Boone, 276 Ala. 16, 158 So.2d 658...