Hot Springs Concrete Co. v. Rosamond

• Decision Date: 29 October 1928
• Docket Number: (No. 221.)
• Citation: 10 S.W.2d 12
• Parties: HOT SPRINGS CONCRETE CO. v. ROSAMOND et al.
• Court: Arkansas Supreme Court

10 S.W.2d 12

HOT SPRINGS CONCRETE CO. v. ROSAMOND et al.

(No. 221.)

Supreme Court of Arkansas.

October 29, 1928.

Appeal from Saline Chancery Court; W. R. Duffie, Chancellor.

Action by the Hot Springs Concrete Company against T. A. Rosamond and another. From a judgment dismissing the cause as to all defendants for want of jurisdiction plaintiff appeals. Reversed and remanded, with directions.

E. R. Parham, of Little Rock, for appellant.

MEHAFFY, J.

This suit was begun in the Saline circuit court, plaintiff alleging that T. A. Rosamond and Taylor Rosamond, Jr., were indebted to him for material in the sum of $1,002.59, for which it asked judgment and it also prayed judgment against the Continental Casualty Company for $209.08 and against the American Surety Company for $793.59, alleging that T. A. Rosamond and Taylor Rosamond had entered into a contract to do certain work and that the two surety companies were sureties on his bonds.

Plaintiff also filed allegations and interrogatories and bonds for garnishment, and writs of garnishment were issued and served on the garnishees W. P. George, George Hughes, trustee, and Dr. J. B. Shaw.

The defendants T. A. Rosamond and Taylor Rosamond filed a forthcoming bond and all of the defendants filed answer, denying the allegations of plaintiff's complaint. Thereafter the defendants filed motion to dismiss for want of jurisdiction, alleging that the suit was based on an alleged breach of contract on the part of the defendants T. A. Rosamond and Taylor Rosamond, the said contract having been entered into by and between them and the United States of America for certain improvements to be made on the United States reservation at Hot Springs, Ark.; that under and pursuant to the provisions of section 6923 of the United States Compiled Statutes 1916 (40 USCA § 270), relating to the bonds of contractors who enter into a formal contract with the United States for the construction of any public building or the prosecution and completion of any public work, the contractors are required to execute a bond with good and sufficient sureties, with the additional obligation that such contractors shall promptly make payments to all persons supplying him with labor or material in the prosecution of the work; that the said statute further provides that any person who has furnished labor or material used in the construction or repair of any public work, and payment has not been made, shall have the right to intervene and be made a party to any action instituted by the United States on the bond of the contractor. They allege that the act further provided that suit should be brought in the district court in which said contract was to be performed, irrespective of the amount in controversy, and not elsewhere.

Defendants allege that suit had already been instituted in the United States District Court for the benefit of the Arkansas Foundry Company, and that said suit was then pending; that under the statute only one suit can be maintained on said bond, and this suit must be in the United States District Court.

They therefore alleged that the plaintiffs had no right to bring this action, but that any suit growing out of the breach of said contract and said bond must be brought in the name of the United States, and that neither the Saline chancery court nor the Saline circuit court had any jurisdiction; that their only remedy was to file an intervention and be made a party in the United States District Court.

The plaintiffs moved to dismiss as to the Continental Casualty Company but not as to the American Surety Company. The court thereupon dismissed the cause as to all the defendants for want of jurisdiction, and, from this judgment of the court dismissing the cause, this appeal is prosecuted.

The only question for the consideration of this court is whether the court erred in dismissing as to all the defendants.

No suit against the sureties on this bond could be brought in any court other than the United States District Court, and only one suit could be brought there, and, when it is begun, the statute provides that all other claimants may intervene. 40 U. S. Code Annotated, § 270; Miller v. American Bonding Co., 257 U. S. 304, 42 S. Ct. 98, 66 L. Ed. 250; United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157, 34 S. Ct. 550, 58 L. Ed. 893; Ill. Surety Co. v. United States, 240 U. S. 214, 36 S. Ct. 321, 60 L. Ed. 609; United States v. Congress Construction Co., 222 U. S. 199, 32 S. Ct. 44, 56 L. Ed. 163.

Since no suit could be brought against the sureties on the bond in any court other than the United States District...