Hyde Const. Co. v. Highway Materials Co., 42814

• Decision Date: 20 December 1963
• Docket Number: No. 42814,42814
• Citation: 159 So.2d 170,248 Miss. 564
• Parties: HYDE CONSTRUCTION COMPANY, Inc., and United States Fidelity and Guaranty Company v. HIGHWAY MATERIALS COMPANY et al.
• Court: Mississippi Supreme Court

Page 170

159 So.2d 170

248 Miss. 564

HYDE CONSTRUCTION COMPANY, Inc., and United States Fidelity and Guaranty Company v. HIGHWAY MATERIALS COMPANY et al.

No. 42814.

Supreme Court of Mississippi.

Dec. 20, 1963.

Watkins & Eager, William E. Suddath, Jr., Jackson, for appellants.

Overstreet, Kuykendall, Perry & Phillips, Green, Green & Cheney, Tighe & Tighe, Jackson, for appellees.

RODGERS, Justice.

This is an appeal from judgments of the Circuit Court of the First District of Hinds County, Mississippi, in two causes of action tried on one record, both of which grew out of the following facts.

Hyde Construction Company, Inc. (hereinafter called Hyde) entered into a contract with the Mississippi State Highway Department to build a certain part of the state highway. The United States Fidelity & Guaranty Company, as surety, (hereinafter called U. S. F. & G.) posted the usual contract performance and payment bond. Since the first suit was filed on this bond and contract, it will be designated as 'first suit.'

Hyde also contracted with the Mississippi State Highway Department for the construction of another portion of the state highway, and U. S. F. & G. also posted a surety bond for the faithful performance of this contract. This contract will be designated as 'second suit.'

It is shown without dispute that Hyde obtained from appellee, highway Materials Company, materials valued at $50,653.66. It is also shown that Hyde did not pay for these materials.

Hyde obtained materials valued at $951.88 from Knowles Materials Company. Hyde was also furnished insurance coverage by Dan Bottrell & Company in the sum of $10,067.10. It obtained materials from Faulkner Concrete Pipe Company valued at $106,623.84. Hyde failed to pay the above indebtedness, and on June 8, 1962, Highway Materials Company filed a suit against Hyde and U. S. F. & G. for the indebtedness, plus 'interest, expenses and attorney's fees.' The amount of the attorney's fee was not stated. The petition simply requested 'reasonable' attorney's fees. Process was issued to both defendants, but before process was returned, the other above-named claimants intervened, setting out their claims and also asking for a judgment for the principal, plus interest and 'reasonable attorney's fees.' Neither defendant filed an answer in either case. Thereafter, on July 2, 1962, the plaintiffs on the first suit appeared before the circuit court and obtained a judgment against Hyde and U. S. F. & G. The circuit judge allowed 15% of the amount due as attorney's fees to each claimant, as follows: Highway Materials Company $8,446.70; Knowles Materials Company, $156.65; Dan Bottrell & Company $1,781.86; and to Faulkner Concrete Pipe Company $17,011.81.

On July 18, 1962, defendants filed a motion to set aside the default judgments insofar as the judgments to fix the attorney's fees were concerned, and requested that 'attorney's fees be fixed' at reasonable sums.

In the second suit above-mentioned, it was shown that Hyde became indebted to Highway Materials Company for $121.30. It also became indebted to Knowles Materials Company in the sum of $70,214.63. On June 8, 1962, Highway Materials Company filed its suit against Hyde and U. S. F. & G. seeking to recover the amount due it, and 'reasonable attorney's fees.' Knowles Materials Company intervened and also sought to recover the amount due it, 'together with all expenses and costs incurred herein, including a reasonable attorney's fee.'

On July 11, 1962, plaintiffs in the second suit also obtained a default judgment against both Hyde and U. S. F. & G., and on writs of inquiry, the plaintiffs were allowed 15% attorney's fees by default judgment as follows: Highway Materials Company $20.02; Knowles Materials Company $11,503.86.

Defendants also filed a motion in the second cause of action, requesting the court to set aside this judgment insofar as it applies to the attorney's fee. The motions filed in the first and second cases were not verified by oath. Process was duly had in both cases.

An order was entered by the trial judge during the July 1962 Term, taking these motions under advisement 'for disposition in term time or in vacation.' On August 6, 1962, defendants filed motions for a new trial upon the issue of attorney's fees in both suits upon the ground that 'the addition of said claims or said sums as attorney's fees is unreasonable and oppressive and against the great weight of evidence.' These motions for a new trial were also taken under advisement by special order, dated August 6, 1962, for 'disposition either in term time or in vacation.' No action was taken by the court during vacation, after the regular July Term and before the next regular September Term of the court. During the 1962 September Term of court, the parties appeared and introduced testimony. On the hearing, the court consolidated the cases and testimony was taken on both motions in both cases, as one suit, at the same time. No order was entered sustaining or overruling the motions to set aside the judgments or the motions requesting a new trial during that term of court.

It is said that the court entered an order attempting to carry into vacation 'all appeals and pending motions' for 'hearing and decision in vacation', but no such order appears in the record in this case.

During the interval after the September Term of court and before the regular 1962 November Term of court, the circuit judge rendered an opinion styled 'Judgment', dated October 18, 1962. This judgment attempted to reform the default judgments entered at the July Term of court, and to reduce the attorney's fees allowed from 15% to 10%.

Thereafter, on November 1, 1962, a formal, final judgment reducing the attorney's fees from 15% to 10% of the amount collected was entered in favor of Knowles Materials Company for attorney's fees in the sum of $7,521.46. The following day, (November 2, 1962), a formal, final judgment was entered in favor of Highway Materials Company in the sum of $5,565.36. And on November 5, 1962, a formal, final judgment was entered in favor of the Dan Bottrell & Company in the sum of $1,508.76 for attorney's fees.

The 1962 November Term of court began on the first Monday, the 5th day.

Defendants have appealed and complain of the orders of the court allowing the following attorney's fees: In the first case; Highway Materials Company $5,565.36; Dan Bottrell & Company $1,508.71; and in the second case, Knowles Materials Company in the sum of $7,521.46.

Appellants assign as error that such judgments are not supported by any evidence and are contrary to the overwhelming weight of the evidence.

In the outset, we are confronted with the question as to whether or not this Court has acquired jurisdiction of this cause of action on appeal, and we are not troubled with the argument that this question was presented by cross-appeal by parties who, it is said, have received payment, because this Court has the duty to determine whether or not it has jurisdiction on appeal, and may raise the question on its own motion. American Cotton Oil Company v. La Valle House, 148 Miss. 259, 114 So. 321; Talbot & Higgins Lbr. Company v. McLeod Lbr. Company, 147 Miss. 186, 113 So. 433; Warner v. Hogin, 148 Miss. 562, 114 So. 347; Liberty Trust Company v. Planters' Bank, 155 Miss. 721, 124 So. 341; Drummond v. State, 184 Miss. 738, 185 So. 207; Hayes v. Abney, 186 Miss. 208, 188 So. 533; Woodson v. Doyle, 196 Miss. 308, 16 So.2d 852; Kennington-Saenger Theatres, Inc. v. State, ex rel., Dist. Atty., 196 Miss. 841, 18 So.2d 483, 153 A.L.R. 883; Roach v. Black Creek Drainage District, 206 Miss. 794, 41 So.2d 5; Smith v. Smith, 221 Miss. 180, 72 So.2d 230; Coats v. Coats, 227 Miss. 264, 86 So.2d 4.

Testimony in this case shows that the final judgments here complained of by the appellants were rendered by the circuit judge after the September 1962 Term and before the November 1962 Term except the final judgment in favor of Dan Bottrell & Company entered November 5, 1962. The record does not reveal that an order was entered continuing the cases as consolidated for decision in vacation. It is stated in the briefs that an order was entered but such an order is not a part of this record. Moreover, unless an order is entered in a particular case, as provided by Secs. 1522-1523, Miss.Code 1942, Rec., the cases not heard at a regular term of court are continued by law to the next regular term. The pertinent part of Sec. 1649, Miss.Code 1942, Rec., is as follows: '* * * all suits and proceedings remaining undecided shall stand continued of course until the next term; * * *'.

Section 1522, Mis.Code 1942, Rec., authorizing a circuit judge to 'take a case under advisement until the next term', after having caused 'the evidence on both sides to be reduced to writing and signed by him. At the next term the judge shall deliver his opinion in writing, and the evidence and opinion shall be a part of the record without a bill of exceptions; and either party prosecuting an appeal may avail himself of all questions arising upon the record.'

Section 1523, Miss.Code 1942, Rec., provides that 'A judge of any circuit court may deliver opinions and render, make and sign judgments in vacation, as in term-time, in cases taken under advisement by him at a term of the court; and by consent of the parties, or of their...