Continental Casualty Co. v. Caldwell

• Decision Date: 02 July 1941
• Docket Number: No. 9817,9818.,9817
• Citation: 120 F.2d 742
• Parties: CONTINENTAL CASUALTY CO. v. CALDWELL et al. (two cases).
• Court: U.S. Court of Appeals — Fifth Circuit

120 F.2d 742 (1941)

CONTINENTAL CASUALTY CO. v. CALDWELL et al. (two cases).

Nos. 9817, 9818.

Circuit Court of Appeals, Fifth Circuit.

June 3, 1941.

Rehearing Denied July 2, 1941.

R. Emmett Kerrigan, of New Orleans, La., for appellant.

John H. Tucker, Jr., of Shreveport, La., Benj. B. Taylor, of Baton Rouge, La., and Lewis L. Morgan, of Covington, La., for appellees.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

These are appeals from orders dismissing plaintiff's petitions for want of jurisdiction. Plaintiff is here insisting as to each case that there was jurisdiction, defendants that there was not, but if there was jurisdiction, there was no equity in the bill and it should have been dismissed on this ground.

Plaintiff, a corporation and citizen of Indiana, is surety on a contractor's statutory bond,¹ given to the Board of Supervisors of Louisiana State University to secure the performance of a public building contract. Defendants, all citizens of Louisiana, except two are; two of the contractors, the widow of the third, material claimants, and the Board. The petition declares that it is a bill in the nature of a concursus and of a Bill of Interpleader brought under Act No. 224 of 1918, Sections 24(1), 24(26), Judicial Code, 28 U.S.C.A. §§ 41(1, 26), Federal Rules of Civil Procedure, 28 U. S.C.A. following section 723c, and the general equity powers and jurisdiction of the court. The claim made is, that the building contract for which it went surety has been performed; that the Board owes the contractor large sums of money, which it not only refuses to pay, but denies owing; that there are many material claimants, and some have already sued the plaintiff on the bond and that plaintiff is entitled to provoke a concursus to compel the Board to account for all moneys paid out and to pay into court for distribution, all moneys due on the contract, and all claimants to assert and settle all matters at issue between them. The Board moved to dismiss for want of jurisdiction and for want of equity. After a hearing on both motions, there was a dismissal, the order reciting that it was for want of jurisdiction. Appellant, while asserting here that there are other grounds on which the jurisdiction should have been maintained, pitches its appeal on the Louisiana public works concursus statute,² Act No. 224 of 1918, as amended.

Appellees, denying that a surety can provoke a concursus under the Act, urges that if it be assumed that it can, then the suit must be dismissed for want of jurisdictional diversity, since the persons involved in the concursus are citizens of Louisiana. They insist further that the bill may not be maintained as a bill in the nature of a Bill of Interpleader under the Federal Statutes or under the general equity jurisdiction because while there is diversity of citizenship between plaintiff and the defendants named in the bill, no cause or right of action is presented as between plaintiff and the defendants, and particularly as between plaintiff and the Board. Agreeing with appellant that the cause must be dismissed because plaintiff is without right to bring a concursus proceeding under the Louisiana Statute, and that the statute aside, no equitable ground is shown for bringing it, we pass, without deciding, the question whether, if the petition stated a case as a concursus proceeding or a Bill of Interpleader under the Federal Statute or the general equity jurisdiction, the fact that it brings into the federal court for litigation there, controversies between citizens of the same state, the university, the contractor and the material claimants, would oust the court of jurisdiction.

The slightest reflection upon the nature of the statutory suit will demonstrate, we think, that the surety may not maintain it. For, in terms, the statute provides for its bringing only by the authorities, or by a claimant, and as shown by provisions of the statute quoted in the margin, where as here, it is admitted that the surety is solvent and the bond is sufficient in amount to pay the claims, the public authority is entitled to be discharged from the suit, leaving it to proceed as between the claimants, the contractor and surety. This makes it plain beyond question that the purpose of the bond is primarily to protect the public authorities from suit and that for the surety to bring the owner in to litigate in concursus, claims the surety has assumed and agreed to pay, is to defeat the purpose and condition of the bond. In Seal v. Gano, 160 La. 636, 107 So. 473, 474, the purpose and nature of the statutory concursus is set out. "It is a special remedy afforded a certain class of creditors for the concurrent enforcement of their claims and to regulate their rights as between themselves and against a contractor doing public work, and the surety on his bond. It is a statutory concursus authorized to be instituted under certain conditions by the public authorities letting the contract for the public work, or by any person having a properly recorded claim against the contractor who performed the work or caused the same to be done, in the event the authorities failed or neglected to exercise the right. The bond furnished by the contractor for the benefit of the authorities having the work done and for the benefit of claimants against the contractor represents the fund upon and against which the rights of the creditors of the particular work are to be regulated and enforced." (Emphasis supplied.)

While in Graphic Arts Bldg. Co. v. Union Indemnity Co., 163 La. 1, 111 So. 470, 471, the purpose and effect of the proceeding is thus stated, "The proceeding is one specially provided by the statute, and does not fall under the rules provided for in ordinary actions. * * * The liability of the surety company in this instance is co-equal with that of the contractor. The surety company is limited to the defenses that can be made by the contractor. Act 262 of 1916. The obligation of the surety as expressed in the bond is strictly in keeping with the statute requiring the owner to exact such bond. That obligation assumed by the surety company was that it will pay all subcontractors, workmen, laborers, mechanics, and furnishers of material, as their interest may appear."

The surety being by its own allegations sufficient and solvent, its effort, while it stands in default on its bond, to bring the Board in by a concursus proceeding and compel it to account and to pay into court all of the funds that are or should be in its hands for distribution under the further orders of the court, is in the very teeth of the statute, providing, that if the bond is solvent and sufficient, the owner is discharged and that it is only when the surety is insolvent or insufficient that the owner may be held.

When we turn to its other claim that its suit must be considered one either under the Federal Interpleader Act or under the general equity jurisdiction of the court, appellant stands no better. The Federal Interpleader Statute³ will not avail him, because the petition does not show a case as contemplated by that statute of a tender of a sum into court to be contested over by "adverse claimants, citizens of different States." Plaintiff does not as a stakeholder, recognizing its obligation in full and that it has no controversy with any of the claimants, tender the moneys claimed into court for the claimants to contend over. What it is endeavoring to do is, in the very teeth of the Interpleader Statute, to provoke a proceeding between the owner, the claimants and the contractor, as a result of which there will be controversies, all between citizens of Louisiana, tried in the Federal Court.

When finally appellant, invoking such cases as Fidelity & Deposit Co. v. Claiborne Parish School Board, D.C., 11 F.2d 404; Id., D.C., 35 F.2d 376; Id., 5 Cir., 40 F.2d 577; Republic National Bank v. Massachusetts Bonding Co., 5 Cir., 68 F.2d 445; and Glades County, Florida, v. Detroit Fidelity & Surety Co., 5 Cir., 57 F.2d 449, grounds its right to maintain the suit on the general equities of the petition, his case is even more hopeless. For, none of those cases were in...