Johnston v. Bridges, 1 Div. 677

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

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.

[288 Ala. 157]

Page 867

J. B. Johnston, pro se.

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

[288 Ala. 158] 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

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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 [288 Ala. 159] 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...