Holcomb v. American Surety Co.
| Decision Date | 19 October 1931 |
| Docket Number | 165 |
| Citation | 42 S.W.2d 765,184 Ark. 449 |
| Parties | HOLCOMB v. AMERICAN SURETY COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Jackson Circuit Court; S. M. Bone, Judge; reversed.
Judgment reversed and cause remanded.
J H. Johnson and Jones & Wharton, for appellants.
Frauenthal Sherrill & Johnson, for appellees.
Fifty- three persons brought a joint action against the appellees to recover amounts due them for work and labor performed and material furnished one Clark, a contractor, who had the contract for making an improvement known as Drainage District No. 12 in Jackson County. Clark had executed a bond to the drainage district for its use and benefit as well as for the use and benefit of all persons who might furnish any labor or material for the principal under his contract, and it was upon this bond that the liability of the appellees was sought to be established. Suit was first instituted in the chancery court, and a demurrer filed to the complaint which was treated by the court as a motion to transfer to the law court, which was accordingly done over the objection and exception of the appellees. In the latter court a demurrer was filed to the complaint, setting up, among other things, that there was a misjoinder of parties and a nonjoinder of necessary parties. A nonsuit was suffered by some of the plaintiffs, and the case proceeded to trial as to the others, which resulted in a judgment in favor of a certain number and against certain others, among them the Beattie Hardware Company, C. W. Butts, Reed & Deucker, Joe Koettel, J. W. McCartney, W. E. Stephens and Ed Hopper, who in apt time filed their motion for a new trial. This motion was overruled, and they thereupon prosecuted an appeal to this court.
I. It is insisted first by the appellees that the appellants have no standing in this court for the reason that the complaint failed to state a cause of action in that it failed to state the amounts due any of the plaintiffs or what particular work any one of them performed or what material was furnished, and did not state any facts upon which an action could be based as to each separate plaintiff. The pleadings under the Code are liberally construed, and every reasonable intendment is indulged in behalf of the pleader. Thus considering the complaint, we are of the opinion that the facts stated were sufficient to state a cause of action as to each of the plaintiffs, and that objections to the complaint should have been raised by motion to make more specific and certain rather than by demurrer, and the court committed no error in overruling the demurrer.
It is secondly insisted that there was a misjoinder of parties in that fifty-two separate claimants were joined in one cause of action, and that under our decisions in Gage v. Road Imp. Dist. No. 3, 153 Ark. 321, 240 S.W. 427, and Tolbert Bros. & Co. v. Molinder, 178 Ark. 888, 12 S.W.2d 780, each plaintiff had a separate and distinct cause of action and therefore could not maintain a joint action. The trial court correctly held that the complaint was not demurrable on that account.
Section 1081 of Crawford & Moses' Digest provides that "when causes of action of a like nature or relative to the same question are pending before any of the circuit or chancery courts of this State, the court may make such orders and rules concerning the proceedings therein as may be conformable to the usages of courts for avoiding unnecessary costs or delay in the administration of justice, and may consolidate said causes when it appears reasonable to do so."
The purpose of the act is stated therein and is to avoid unnecessary costs or delay in the administration of justice. This section is to be liberally construed so as to effect its purpose. In the case at bar the claims were of a like nature and all against the same defendant, and grew out of the same transaction, and, while each plaintiff had an independent cause of action, it is not to be doubted that, if each had filed his separate suit, the court would have consolidated them for the purposes of trial. Since the court might have done this, we can see no good reason why the plaintiffs might not have jointly proceeded in one suit as they did. If a proper defense could not have been made because plaintiffs were proceeding jointly and not independently, the court, in the exercise of its discretion, might have ordered a severance, but no such request was made, and it does not appear that any disadvantage was suffered. Therefore the action of the trial court in overruling the demurrer on this ground must also be upheld.
The third ground of appellees' demurrer was that there was a nonjoinder of necessary parties, in that the contractor was not made a party, and § 6919 of the Digest is invoked as authority for the position taken. This section provides that, in all cases where a lien shall be filed under the provisions of the act by any person other than a contractor, it shall be the duty of the contractor to defend the action at his own expense. The act referred to in § 6919 was one enacted for the benefit of laborers or other persons who should do work for private individuals or corporations, giving them a lien upon the building, erection or improvement, etc. This statute has no application to the instant case, as the construction in question was of a public nature, upon which there could be no liens, and the rights of the persons performing work or furnishing material must be found in the bond given for their protection. This bond, which is hereafter set out, entitles the beneficiaries--the laborers and materialmen--to an action against the obligors. Oliver Construction Co. v. Williams, 152 Ark. 414, 238 S.W. 615. Clark was a proper, but not a necessary party. If it be true, as claimed by appellees, that Clark was frequently within the State and conferred during the pendency of the suit with their attorneys, they could have themselves made Clark a party if they deemed such action necessary for the preservation of their rights.
The fourth ground urged for an affirmance is that the suit was barred by the statute of limitations, and counsel suggest that, if the evidence was properly abstracted, it would show that the work of the plaintiffs for which they seek to recover was done during 1926 and 1927, and that the contract was forfeited by Clark during the latter part of 1927 and terminated in so far as he was concerned, which would bar plaintiffs' action under § 6914, supra. Appellees have not referred us to the page of the transcript where this evidence may be found, and we have examined the transcript and fail to find such evidence. We think that the case was properly in court, and none of the objections before mentioned made by the appellees are well taken.
It also is insisted by the appellees that the appeal should be dismissed for failure on the part of the appellants to comply...
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St. Louis Southwestern Ry. Co. v. Pennington
... ... Holcomb v. American Surety Co., 184 Ark. 449, 42 S.W.2d 765. The fact that these causes of action were ... ...
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H. B. Deal & Company, Inc. v. Marlin
... ... actions could have been consolidated under §§ ... 1288-9, Pope's Digest. In Holcomb v ... American Surety Co., 184 Ark ... ...
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H. B. Deal & Co. v. Marlin
... ... In Holcomb v. American Surety Co., 184 Ark. 449, 42 ... ...
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R.J. Bob Jones Excavating Contractor, Inc. v. Firemen's Ins. Co. of Newark, New Jersey
... ... this suit against Firemen's seeking to recover on a payment bond issued by Firemen's as surety to Lawrence Brothers ... Incorporated, (hereinafter "Lawrence Brothers") as principal and general ... v. Ideal Lumber Co., Inc., 249 Ark. 545, 547, 460 S.W.2d 55, 56 (1970) (citing Holcomb v. American Surety Co., 184 Ark. 449, 42 S.W.2d 765 (1931)). Laborers and materialmen are allowed ... ...