Continental Casualty Co. v. United States
| Decision Date | 31 March 1948 |
| Docket Number | No. 11707.,11707. |
| Parties | CONTINENTAL CASUALTY CO. v. UNITED STATES, for Use of SCHAEFER et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Brethorst, Holman, Fowler & Dewar, of Seattle, Wash., for appellants Macri et al.
Olson & Palmer, of Yakima, Wash., for appellee Schaefer.
Before DENMAN, HEALY, and BONE, Circuit Judges.
The United States, as use plaintiff for one Schaeffer, sued Sam Macri, Don Macri, Joe Macri, A. J. Goerig, and Clyde Philp, individuals and co-partners doing business as Macri Company, and Continental Casualty Company, a corporation, upon a claimed non-performance of contract between the United States and defendants Macri Company for earthwork, pipelines and structures, laterals 59.3 to 69.8 and sublaterals Roza Division, Yakima Project, Washington, wherein and whereby said defendant contractors contracted to furnish materials and perform work in accordance with the terms of said contract for the sum of $128,550.95. The Continental Casualty Company was joined as surety for the Macri Company's performance of the contract. Judgment on this contract was entered against the three Macris and the Continental Casualty Company jointly and against each of them. The complaint also alleged non-performance of a subcontract of the Macris' company on the same job. Judgment was entered against them alone on this count. The complaint against the other two partners was dismissed.
The Continental Casualty Company claimed against the three Macris on their contract to hold it harmless on its surety bond. Judgment was entered against the Macris for the amount the Continental Casualty Company was held liable to the plaintiff and for its attorneys' fees. This judgment was not made conditional on the non-payment of the judgment by the Macris.
The three Macris also cross complained against the plaintiff. Judgment was entered dismissing the cross complaint. The three Macris also cross complained against Goerig and Philp. Judgment was entered dismissing this cross complaint. Goerig and Philp cross complained against the three Macris. Judgment was entered dismissing this complaint. All the judgments were entered on May 1, 1947.
The Continental Casualty Company and Goerig and Philp moved for a new trial. The three Macris did not join in the motion. The motions for a new trial were denied on May 20, 1947. The Continental Casualty Company and Goerig and Philp appealed within three months after May 1, 1947. The Marcis delayed their appeal until August 18, 1947, more than three months after the entry of the judgments against them, but within three months after the denials of the motions for new trial, in which they did not join.
Schaefer, for whom the United States sues, but not the United States the use plaintiff, moves to dismiss the Macris' appeal on the ground of absence of jurisdiction. There is no motion on behalf of the others having judgment. However, since the question is one of jurisdiction, we must proceed to consider it, even though there may be no moving party.
As to the judgments against the three Macris on their cross complaints, it is apparent their appeal must be dismissed. They made no motion for a new trial as to these judgments, and that of Goerig and Philp was of adversary parties and could not be construed as on behalf of the Macris. So also of the judgment for the United States on the second count against the Macris alone. The statute was not tolled as to it.
The joint and several judgment on the count in favor of the United States against the Macris and their surety and that in favor of the Continental Casualty Company against the Macris on their agreement to hold it harmless present a different question. It is contended that since there might have been a granting of the motion for a new trial in favor of the Continental Casualty Company, the Macris' surety, which would dispose of the same issue as that decided against the judgment debtors Macris, cojointly and with their surety, the pendency of the motions for a new trial by one of such debtors tolled the time for appeal as to all of them.
The Macris cite Brockett et al. v. Brockett, 2 How. 238, 240, 11 L.Ed. 251, the leading case of the judge-made law that the pendency of a motion to modify a decree or for a new trial tolls the statutory time for appeal.* However, the opinion there states that the petition to have opened the decree, the consideration of which tolled the statute, was by the losing "defendants" (plural). The title of the...
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