Fidelity & Cas. Co. of N. Y. v. State Bldg. Commission

• Citation: 228 Miss. 37,87 So.2d 449
• Decision Date: 07 May 1956
• Docket Number: No. 40088,40088
• Court: United States State Supreme Court of Mississippi
• Parties: The FIDELITY & CASUALTY COMPANY OF NEW YORK v. STATE BUILDING COMMISSION et al.

Page 449

87 So.2d 449

228 Miss. 37

The FIDELITY & CASUALTY COMPANY OF NEW YORK v. STATE BUILDING COMMISSION et al.

No. 40088.

Supreme Court of Mississippi.

May 7, 1956.

Watkin & Eager, Wm. E. Sudduth, Jr., Jackson, for appellant.

Young & Daniel, J. E. Skinner, Jackson, for appellees.

McGEHEE, Chief Justice.

The only real parties interested in the controversy involved on this appeal are the appellant Fidelity & Casualty Company of New York on the one hand, and the appellees Lamar F. Easterling, special master, J. E. Kirkland and R. W. Naef, arbitrators, and S. T. Lloyd and Mrs. Clara M. Sims, court reporters, on the other. The instant case only involves certain court costs due the above mentioned cost-claimants, to wit: Lamar F. Easterling, as special master, the sum of $500, the two arbitrators the sum of $1,200 each, the court reporter S. T. Lloyd the sum of $339, and the court reporter Mrs. Clara M. Sims the sum of $285, for services rendered in the case of Arthur Horne, d. b. a. Horne Plumbing, Electric and Supply Company, contractor, v. Mississippi State Building Commission.

The question now before this Court for the first time are: (a) The issue of whether or not the chancery court had the power under Section 1670, Code of 1942, to correct, on March 28, 1955, a decree rendered by it on July 31, 1953, which had been affirmed and the cause remanded by this Court on December 20, 1954, in the above mentioned case of Horne v. State Building Commission, as reported in 222 Miss. 520, 76 So.2d 356, so as to include a finding of liability against a $2,000 supersedeas bond given by the said appellant therein and the Fidelity & Casualty Company of New York on April 13, 1953, in connection with an interlocutory appeal to this Court as of that date, in addition to the finding of liability made on July 31, 1953, against their $1,500 cost bond given in the said trial court on September 17, 1951. (b) Whether or not the trial court would have had the legal right to have included in the decree of July 31, 1953, a finding of liability against the appellant surety company on the $2,000 supersedeas bond of April 13, 1953, even if his attention had been called to the existence of this bond at the time he signed that decree.

The decree of March 28, 1955, now appealed from corrected the decree of July 31, 1953, so as to adjudicate that the liability of the surety company on three bonds executed by it on behalf of Arthur Horne amounted to $3,600; whereas such liability was, by mistake or inadvertence, etc., limited under the decree of July 31, 1953, to the sum of $1,500, on account of the fact that the attorney who prepared the decree, and who did not represent any of the parties to the present appeal, overlooked at that time the existence of the $2,000 supersedeas bond as a part of an eight-volume record, and this bond was not called to the attention of the court when the decree was signed. The surety has paid $20.80 Supreme Court costs, and hence the Court by the decree herein appealed from directed the surety to pay the additional sum of $2,079.50 into the registry of the court to apply on the cost-claims of the appellees herein.

The attorney who prepared the decree testified upon the hearing to amend the decree of July 31, 1953, so as to include liability against the appellant surety company on the $2,000 supersedeas bond that: 'The $2,000 bond simply never entered my mind at all. I completely overlooked it. I had never read the bond. I did get out the $1,500 bond and read it, but the $2,000 bond simply never entered my mind when I was endeavoring to draft this decree.'

The costs due the appellees amounted to $3,524 for their services as special master, arbitrators and court reporters, respectively, and it had all been incurred at the instance of Arthur Horne, the principal in the $2,000 supersedeas bond prior to the execution thereof, and the board of arbitration had already awarded said costs against him under the express authority of the arbitration agreement, as the losing party to the submitted controversy, and which costs he had therein agreed to promptly pay 'as awarded by the board of arbitration.' The cost-bill showing the costs awarded against the said contractor had already been reported to the court when the $2,000 supersedeas bond was executed, and of course the appellant herein, Fidelity & Casualty Company, necessarily knew that the supersedeas bond would stay the right of the cost-claimants to insist upon the prompt payment of their cost-claims, then in excess of the $1,500 cost bond on which said company had previously become the surety, and also the surety knew that the same would stay the right of the cross-claimants to the prompt payment of their cost even under the $1,500 bond theretofore given, pending the appeal with supersedeas.

Subsequent to the affirmance and remand of the case of Horne v. State Building Commission, on December 20, 1954, by this Court on the final appeal thereof, the appellant herein, Fidelity & Casualty Company, interpleaded these cost-claimants and paid into the registry of the chancery court the amount of the $1,500 bond. The pleading filed on February 18, 1955, as a 'motion by way of interpleader' stated that 'some of the claimants are contending that the liability of the Fidelity & Casualty Company of New York is not limited to the penalty of said $1,500 bond', and the jurisdiction of the court was invoked to determine the rights of the said claimants, naming them, to share in the fund of $1,500, and the court was further asked to 'declare that the Fidelity & Casualty Company of New York is forever discharged and released from any and all other liability of whatsoever nature to the said * * *', cross-claimants, naming them. And the petition prayed that citation be issued to them to show cause why such adjudication should not be made. Upon notice given to the cost-claimants, they filed responses and claimed liability against the $2,000 supersedeas bond given in connection with the interlocutory appeal to this Court which was dismissed on June 8, 1953, as not being entertainable. As a result of the hearing on the motion by way of interpleader on March 28, 1955, the court, at the instance of the cost-claimants who had been interpleaded, corrected its former decree of July 31, 1953, in the manner hereinbefore stated.

Section 1670, Code of 1942, reads in part, as follows: 'Errors in general, corrected--changes in trial records, corrected.--Where, in the record of a judgment or decree of any court of law or equity, there shall be a mistake, miscalculation, or misrecital of any sum of money, quantity of any thing, or of any name, and there shall be among the records of the proceedings in the suit any verdict, bond, bill, note, or other writing of the like nature or kind, * * * whereby such judgment or decree may be safely amended, it shall be the duty of the court, * * * to amend such judgment or decree thereby according to the truth, but the opposite party shall have reasonable notice in writing of not less than three days of the application for the amendment. And if the transcript of such judgment or decree at the time of the amendment, or at any time thereafter, be removed to the Supreme Court, it shall be the duty of that court, upon the inspection of such amended record, to be brought before it by certiorari if need be, to affirm the judgment * * *.' (Italics ours.)

Presumably the contractor, who had initiated the arbitration proceedings, intended when he deposited the $2,000 in cash that it should be for the protection of the arbitrators, could reporters and others whom he had agreed to promptly pay. In fact, he had paid the arbitrator whom he selected and induced to serve, the sum of $2,080, and made partial payments to each of the court reporters. Since he was able to put up the sums of more than $4,000 in cash, including the cash deposit of $2,000 on this supersedeas bond, he was evidently solvent at that time.

It will be noted that the above quoted provisions of Section 1670, supra, contains no limitation as to the time within which a mistake, miscalculation or misrecital in a judgment or decree may be corrected where 'there shall be among the records of the proceedings in the suit any verdict, bond, bill, note, or other writing of the like nature or kind * * * whereby such judgment or decree may be safely amended'. In other words, the statute does not require by its terms that the amendment be made prior to the affirmance of the judgment or decree by the Supreme Court.

It is to be conceded that there is no decision of this Court that precludes the exercise of the power conferred on the trial court by the statute in proper cases after the judgment or decree sought to be corrected has been affirmed by this Court. The only decision referred to in the briefs which has any bearing on such right is that of Huddleston v. Huddleston, 132 Miss. 55, 95 So. 674, 675, which was a suit for the partition of land where the decree ordering the partition had limited the interest of Rafe Huddleston to a remainder interest, whereas he owned a one-fourth undivided interest in fee of the land. After the decree of the court was rendered, adjudicating the respective interests of the parties to the suit in the lands described, an interlocutory appeal was allowed to settle the principles of law involved. After the affirmance of the decree as written, so adjudicating the interest of the respective parties in the land, on such interlocutory appeal and the remand for partition, the court below was asked to correct the decree so as to adjudicate that Rafe Huddleston owned a one-fourth undivided interest in fee in the land instead of merely a remainder interest. The trial court overruled the motion to correct, reciting in its decree overruling the motion that the court was "of the opinion that it is without power to amend the said decree, even though the error complained of...