Pacific Greyhound Lines v. Brooks, 5380

• Decision Date: 10 July 1950
• Docket Number: No. 5380,5380
• Parties: PACIFIC GREYHOUND LINES v. BROOKS et al.
• Court: Arizona Supreme Court

Page 477

220 P.2d 477

70 Ariz. 339

PACIFIC GREYHOUND LINES v. BROOKS et al.

No. 5380.

Supreme Court of Arizona.

July 10, 1950.

Jennings, Strouss, Salmon & Trask, of Phoenix, and J. A. Riggins, Jr., of Phoenix, for petitioner.

Fred O. Wilson, Atty. Gen., Calvin H. Udall, Asst. Atty. Gen., for Corporation Commission.

Langmade & Sullivan, of Phoenix, for Sun Valley Bus Lines, Inc., an interested party.

UDALL, Justice.

This is an original proceeding initiated in this court by petitioner, Pacific Greyhound Lines, a corporation (hereinafter termed Greyhound), against the Arizona Corporation Commission and the individual members thereof. Greyhound is asking that this court prohibit said Commission from taking any further steps to carry into effect the order, entered upon its own motion, directing Sun Valley Bus Lines, Inc. (hereinafter termed Sun Valley), holder of certificate of convenience and necessity No. 5234, to commence rendering local passenger service to all intermediate points between Phoenix-Florence or Phoenix-Superior (save and except through passengers between the designated termini).

The Attorney General filed a response on behalf of the respondents Arizona Corporation Commission and the attorney for Sun Valley, the real party in interest, has fully briefed the factual and legal issues presented.

To forestall any claim that the matter is now moot by reason of the order having been entered before the alternative writ of prohibition was issued we point out that this order must needs be implemented by further acts of the Commission. Therefore it is in the interest of orderly administration of the law and for the future guidance of the Commission that this court should now determine the issue presented. Corbin v. Rogers, 53 Ariz. 35, 85 P.2d 59. Further more this remedy appears proper for as is stated in 42 Am.Jur., Prohibition, Sec. 41, '* * * so long as anything remains to be done under a void judgment or order, prohibition may prevent the doing of it.'

This is a companion case to certiorari proceeding in the case of Metropolitan Lines, Inc., v. Brooks, Ariz., 220 P.2d 480. It will be noted that both of these cases are germane to and stem from the controversy decided by this court on March 13, 1950, in the case of Pacific Greyhound Lines v. Sun Valley Bus Lines, 70 Ariz. 65, 216 P.2d 404, hereinafter referred to as cause No. 4988.

Upon the going down of the mandate in cause No. 4988, attorneys for Greyhound (appellant therein) presented to the lower court a proposed form of 'Judgment and Decree on Mandate of the Supreme Court' wherein was incorporated this order, viz.: '3. That the defendant Sun Valley Bus Lines, Inc., a corporation, its officers, agents and servants be, and they are hereby, enjoined and restrained from giving or rendering service between Chandler and Phoenix and points intermediate thereto.' (Emphasis supplied.) Attorneys for Sun Valley (appellee therein) objected to the inclusion of the phrase 'and points intermediate thereto', this objection was sustained and counsel were directed to prepare a form of judgment omitting same. Whereupon appellants petitioned this court to recall its mandate and modify and amend it in such form and manner as to more clearly set forth the substance of its opinion and decision in the matter. This petition was granted and an amended mandate was issued incorporating the precise phraseology quoted above. Also for the reasons hereinafter stated, this statement, to wit: 'The rights, if any, of appellee under certificate of convenience and necessity No. 5234 were not presented or considered in this cause', was added to the amended mandate.

The operative rights of Sun Valley to serve from Phoenix (over the same highways used by Greyhound) the Winkleman-Hayden-Hayden Junction-Kelvin District-Ray and Sonora areas under certificate No. 5234 were in nowise an issue in cause No. 4988. On the other hand Sun Valley's rights, if any, to render intermediate local service in the Tempe-Mesa and Chandler areas under any certificate of convenience and necessity were necessarily very much an issue. However, Sun Valley failed to advance certificate No. 5234 as a basis for such operations or as a defense to the injunctive relief sought.

While we have held in the certiorari matter, supra, decided today, that certificate No. 5234 does not authorize local service to intermediate points between Phoenix-Florence and Phoenix-Superior, yet, even assuming that it did, in deciding this prohibition matter we would necessarily be required, on the principle of res judicata, to hold that the question had been resolved against Sun Valley, the real party in interest. We make this statement because an analysis of the pleadings and proof in cause No. 4988 indubitably shows that amongst the issues raised by the complaint and cross complaint were those as to the legal right and authority of Sun Valley under any order or certificate of convenience and necessity issued by the Commission (1) to operate over the routes and highways now in question, and (2) to render local service to intermediate points therein, excepting only locally between Phoenix and Mesa. 'It is the general rule that a judgment in favor of a plaintiff is res adjudicata as against the defendant, not only on every issue raised by the defendant but upon every issue which he could have raised as a defense against the complaint * * *'. (Emphasis supplied.) Stewart v. Phoenix Nat. Bank, 49 Ariz. 34, 47, 64 P.2d 101, 107. Since this pronouncement was made, this court by the adoption of the Federal Rules has expressly made this principle a part of our rules of procedure under the heading 'Waiver of Defenses'. Rule 12(h), now Sec. 21-436, A.C.A.1939. See also 49 C.J., Pleading, ...