Hartford Accident Indemnity Co v. Bunn, 333
Citation | 285 U.S. 169,52 S.Ct. 354,76 L.Ed. 685 |
Decision Date | 14 March 1932 |
Docket Number | No. 333,333 |
Parties | HARTFORD ACCIDENT & INDEMNITY CO. v. BUNN et al |
Court | United States Supreme Court |
and W. Calvin Wells, both of Jackson, Miss., and Arthur G. Powell, of Atlanta, Ga., for appellant.
[Argument of Counsel from pages 170-173 intentionally omitted] Messrs. Gerard H. Brandon and S. B. Laub, both of Natchez, Miss., and Garner W. Green, of Jackson, Miss., for appellees.
[Argument of Counsel from page 173 intentionally omitted] Mr. Justice McREYNOLDS delivered the opinion of the Court.
October 18, 1926, J. V. and R. T. Burkes agreed with the investment company, owner of certain land in Natchez, Miss., to construct a hotel thereon. The contract contains the following clauses:
'Obligations of Bondsmen.-The Contractor's bondsmen shall obligate themselves to all the terms and covenants of these specifications, and of the contracts covering the work executed hereunder, and the Owner and the Architect reserve the right to make all desired changes, alterations, and additions, under the conditions and in the manner hereinbefore described, without in any measure affecting the liability of the bondsmen or releasing them from any of their obligations hereunder.'
October 20, 1926, the Burkes gave a bond for $316,822, payable to the investment company with appellant as surety. Among other things this provides:
'1. * * *
Payments to the contractors were made as required by the building contract but they failed to satisfy claims for material furnished by Bunn Electric Company and others. The latter notified the investment company. There upon, it instituted a proceeding in the chancery court, Adams county, Miss., against the contractors, the appellant Hartford Accident & Indemnity Company, and many unpaid materialmen. The bill prayed for a decree declaring the indemntiy bond to be one for faithful performance of the building contract and subject to the rights and liabilities provided by section 3,1 chapter 128, Mississippi Laws of 1918 (section 2598, Hemingway's Miss. Code 1927); also for judgments in favor of those who had furnished materials, etc.
The materialmen answered. Also by cross-bill and interventions they set up their claims and asked for judgments against the contractors and appellant here, surety upon the bond. The chancellor gave judgments in favor of the cross-complainants as prayed. The indemnity company appealed. The Supreme Court approved upon the view that section 3, chapter 128, Mississippi Laws 1918, applied and controlled the obligation of the bond. Hartford Accident & Indemnity Co. v. Natchez Inv. Co., 132 So. 535. It ordered that the materialmen severally 'do have and recover of and from the appellant Hartford Accident & Indemnity Company, and of AEtna Casualty & Surety Company, surety in the appeal bond,' the sums found to be due them.
Upon petition of the Hartford Accident & Indemnity Company alone, the Chief Justice of Mississippi allowed an appeal to this court July 25, 1931. The AEtna Casualty & Surety Company did not join in the appeal; there was no summons and severance nor any notice equivalent thereto.
The assignment of errors challenges the validity, under the Federal Constitution, of section 3, chapter 128, Mississippi Laws, above cited, as construed and applied.
December 4, 1931, the appellees entered a motion here to dismiss the appeal. They maintain that the judgments in the Mississippi Supreme Court against appellant and AEtna Casualty & Surety Company were joint; the latter company did not join in the appeal; there was no summons and severance; consequently this Court is without jurisdiction.
December 23, 1931, appellant and the AEtna Company asked that the latter be made party to the appeal and for proper amendments to that end.
The motion to amend must be overruled. The motion to dismiss is sustained.
The challenged judgment became final June 15, 1931, more than six months before the AEtna Company applied here for permission to become a party to the pending appeal. If this application and the accompanying motion to amend were granted, the practical effect would be to permit an appeal by a party to a judgment after the prescribed time had expired.
The statute (Act of Feb. 13, 1925, c. 229, § 8, 43 Stat. 940, 28 USCA § 350) provides: 'No writ of error, appeal, or writ of certiorari, intended to bring any judgment or decree before the Supreme Court for re- view shall be allowed or entertained unless application therefor be duly made within three months after the entry of such judgment or decree. * * *' Passage of the three months' period extinguished the right to grant an appeal. Rust Land & Lumber Co. v. Jackson, 250 U. S. 71, 76, 39 S. Ct. 424, 63 L. Ed. 850; Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 418, 43 S. Ct. 458, 67 L. Ed. 719.
The judgment is joint in form and no reason appears why either or both of the parties defendant therein might not have appealed to this Court and submitted claims of error for our determination. In matters of this kind we may not disregard the face of the record and treat the judgment as something other than it appears to be. So to do probably would lead to much confusion and uncertainty.
Haseltine v. Central Nat. Bank, 183 U. S. 130, 131, 22 S. Ct. 49, 50, 46 L. Ed. 117:
Norfolk & S. Turnpike Co. v. Virginia, 225 U. S. 264, 268, 269, 32 S. Ct. 828, 830, 56 L. Ed. 1082. The question was: To which state court should the writ of error run? This Court said: ...
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