Opinion
No. 30938.
January 22, 1934.
1. HIGHWAYS.
Materialmen's suit against principal road contractor and surety on subcontractor's bond running to principal contractor held governed by statutes regarding suits on bonds to pay for labor and materials furnished, and not by statute requiring notice of suit by publication (Code 1930, sections 2276-2281, 5976).
2. HIGHWAYS.
Materialmen by suing principal road contractor instead of subcontractor could not bring themselves within statutes regarding contracts for public work, where their petitions showed that materials were furnished to subcontractor, and that bond sued on was subcontractor's bond (Code 1930, sections 5971-5976).
3. ABATEMENT AND REVIVAL.
Materialmen's suit against principal road contractor and surety on subcontractor's bond held dismissible where former suit had been filed in another county on same bond against same surety by materialmen furnishing materials to subcontractor on same subcontract (Code 1930, sections 2264, 2279, 2281).
APPEAL from Chancery Court of Smith County.
J.A. Covington, Jr., of Meridian, for appellant.
This suit is governed by chapter 128 of the Laws of 1918, Code of 1930, sections 2276, 2277, 2278, 2279, 2280 and 2281.
The contract and bond sued upon are private in their nature, not being required by statute.
Davis Company v. D'Lo Guaranty Bank, 138 So. 802.
Section 2279 of the 1930 Code provides that when suit is instituted on such a bond that only one action shall be brought and any person entitled to sue may, upon application, intervene and be made a party to said suit.
It will be noted that the Federal statute governing suits upon bonds on Federal contracts is almost identical with our contract bond statute. The Federal courts have held that all claims under a government contractor's bond are to be presented and adjudicated as a single action in which every claimant may intervene and be heard as a party.
Arnold v. U.S., for use of W.D. Guimarin Co., 263 U.S. 427; Miller v. American Bonding Co., 257 U.S. 204; U.S. v. Wells, 257 U.S. 304, 66 L.Ed. 250; Illinois Surety Co. v. U.S., 212 Fed. 136, 129 C.C.A. 584; U.S. v. Illinois Surety Co., 228 Fed. 304.
It has been held by our Supreme Court that public contractors' bonds do not cover materials and equipment necessary for contractors to have to perform work; that repairs on public contractors' equipment are not secured by their bonds; that a public contractor's bond does not secure the purchase price of machinery coming under the head of equipment.
McElrath Rogers v. W.G. Kimmons Sons, 112 So. 164; U.S.F. G. Co. v. Yazoo County, 110 So. 780; Oliver Construction Company v. Crawford, 107 So. 877; Watkins v. U.S.F. G. Co., 103 So. 224.
A bill must, by its own averments, state a case entitling the complainant to relief and the omission of a material averment makes the whole bill bad.
Griffith's Chancery Practice 166 A; Lumber Company v. Newcomb, 30 So. 608; Barrier v. Kelly, 33 So. 974; Parkhurst v. McGraw, 24 Miss. 134; Salmon v. Smith, 58 Miss. 399.
It is a fundamental that an appeal from a final decree opens for consideration all prior interlocutory decrees in any way connected with the merits of the final decree.
Kimball v. Alcorn, 45 Miss. 145; Jackson v. Lemler, 83 Miss. 37, 35 So. 306.
J.D. Martin and R.S. Tullos, both of Raleigh, for appellees.
This suit was instituted and is governed by section 5971 of the Mississippi Code of 1930, and the court will find from the reading of the record in this case that no notice was given as is required by section 5976 of Mississippi Code of 1930, as to any of the suits in this same matter being instituted or pending in Lauderdale county, and the record in this case shows that the work, etc., upon which this suit is based was done in Smith county, and the failure to give notice as required by the section above cited, we had a right to file and maintain this suit in Smith county, and that this suit was filed in Smith county, Mississippi, before the appellee had any notice of any kind, that a suit had been filed in Lauderdale county.
U.S.F. G. Co. v. Mobley, 143 Miss. 512, 108 So. 501.
The motion to dismiss should be sustained and the case dismissed, because without the appellant complying with section 725 of the Mississippi Code of 1930, in giving this notice and seeing that the records taken in the lower court in this case as to the evidence heard in the lower court, prevents appellees from getting their case in full before this court.
Clark McCaa contracted with the state to construct or reconstruct a certain road in Smith county, and thereafter the said principal contractors let a subcontract for the clearing, grubbing, and sodding of said road project to Davis McBride. The said subcontractors gave bond to the principal contractors for the faithful performance of the subcontract with appellant as surety on the bond. The subcontractors in their attempt to perform their subcontract became indebted to appellees for divers amounts alleged to be for materials furnished to them in the furtherance of the work.
The sum due appellees by the subcontractors not having been paid, appellees filed suit in the chancery court of Smith county on April 1, 1932, against the principal contractors and against the surety of the subcontractors to enforce collection of their said debts against the bond given as aforesaid. The surety appeared at the May, 1932, term of the court and answered. In its answer it incorporated a plea that on February 19, 1932, a suit had been filed in the chancery court of Lauderdale county upon the same bond and against the same surety by a person who had furnished labor and materials to said subcontractors on the same subcontract, and that all other persons interested therein had been summoned to appear and intervene in said Lauderdale county suit, and that appellees had on dates previous to the convening of said term in Smith county been served with summons in the Lauderdale county suit. With this plea there was filed as an exhibit a certified copy of the proceedings in Lauderdale county showing that the chancery court there had properly acquired jurisdiction of the suit before the filing of suit in Smith county.
In response to said plea, appellees contended that section 5976, Code 1930, had not been complied with in the Lauderdale county suit and relied on United States Fidelity Guaranty Co. v. Mobley, 143 Miss. 512, 108 So. 501. Neither the section nor the case cited is applicable here. That section and the cited case deal with a case where the materials have been furnished to the principal contractor, and where the suit is on the bond of the principal contractor. In the case at bar the materials were furnished to a subcontractor whose bond ran not to the state or county, but to the principal contractor and is governed therefore not by sections 5971-5976, Code 1930, but by sections 2276-2281, Code 1930. Davis v. Guaranty Bank, 162 Miss. 829, 138 So. 802. The effort of appellees to bring themselves within sections 5971-5976 by suing the principal contractors instead of the subcontractors is ineffective, because the bills and petitions of appellees show that the materials were furnished and charged to the subcontractors, not to the principal contractors, and the bond sued on is the bond of the subcontractors, not that of the principal contractors.
Section 2279, Code 1930, provides that but one suit shall be brought under such a bond, and that when one person entitled to sue has brought suit, all other persons interested may intervene, and by section 2281, Code 1930, it is enacted that the parties interested shall be summoned as provided by section 2264, Code 1930, which is the general section governing the summoning of parties touching controversies respecting statutory liens. It is not required by the statutes in respect to suits on bonds by subcontractors, the private bonds given by them to the principal contractor, that publication shall be made as mentioned in section 5976, Code 1930, which applies only to suits on the public bond given by the principal contractor. Apparently the same reasons exist for the requirement of publication where a private subcontractor's bond is involved, but the Legislature did not so enact and we are not authorized to supply the omission by judicial construction, which, of course, would plainly be judicial legislation.
Since the statute expressly provides that only one suit shall be brought, it follows necessarily that the first suit instituted in a court of competent jurisdiction, competent both as to subject-matter and as to parties, must be the suit which must be allowed to determine all the issues and claims, and, since it appears from the certified exhibits that the chancery court in Lauderdale county had first obtained competent jurisdiction, any subsequent suit should be abated and dismissed, and all the parties remitted to the first suit for the adjudication of their rights under the bond.
Reversed and dismissed.