Lucas v. Western Casualty & Surety Co.
| Decision Date | 27 July 1949 |
| Docket Number | No. 3867.,3867. |
| Citation | 176 F.2d 506 |
| Parties | LUCAS v. WESTERN CASUALTY & SURETY CO. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Julian B. Fite, Muskogee, Okl., for appellant.
Clyde Watts, Oklahoma City, Okl. (Looney, Watts, Ross, Looney & Smith, Oklahoma City, Okla., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.
A. H. Leal entered into a contract with the Oklahoma Highway Commission for the construction of certain highway projects. Pursuant to 61 Okl.St.Ann. § 1, Leal, as principal, and Western Casualty & Surety Company1 entered into a bond conditioned for the payment of all indebtedness incurred for labor or materials furnished in the construction of such highway projects. Leal entered into a contract with Lucas whereby Lucas agreed to deliver from plant or quarry to the location of the projects crushed stone and sand to be used in the construction work, and Leal agreed to pay Lucas for such transportation .0225 cents per quarter mile yard haul of rock, and .55 cents per cubic yard of sand. Thereafter, Lucas proceeded to assemble the necessary trucks and equipment and effect an organization for the delivery of such sand and rock. Lucas' services consisted solely in furnishing his own time and energies. He did not own the trucks. The record does not disclose his arrangement for the use thereof with the truck owners. In assembling the trucks and equipment and effecting an organization for carrying out the contract and in supervising the transportation of rock and sand, Lucas devoted 45 days. He was then directed by Leal to cease performance under the contract. At that time, Lucas had delivered approximately one-third of the material. The completion of the job would have required only 15 additional days of his time. Lucas, at the time he was directed to cease performance, had been paid for all of the material delivered except $383.50. He was not to receive wages but depended on profit under the contract for his remuneration. Lucas brought an action against Leal in the district court of Craig County, Oklahoma, and recovered a judgment for $383.50 for work performed under the contract and an additional judgment for $2,081.46 for breach of contract. Thereafter, Lucas brought this action against the Surety Company on the bond and, on December 20, 1948, the parties filed a written stipulation in the case, which recited the foregoing facts and these additional facts: Had the contract been fully performed by Lucas, he would have realized a profit of $3,000. He was paid $616.50. There was due him for work performed $383.50. The value of the services performed, based on the contract price, was $2,250. Lucas claimed $383.50 for material delivered under the contract and $1,250 for services performed prior to the breach of the contract. The Surety Company admitted that it was indebted to Lucas for $383.50 and denied liability for the additional claim of $1,250.
On October 25, 1948, the clerk made the following entry in the cause in the civil docket book:
On December 20, 1948, the trial court entered a written judgment, which was approved by counsel for Lucas and the Surety Company, and which recited that the cause came on for hearing October 25, 1948, and that counsel presented a stipulation of facts to the court. The court found that Lucas was entitled to recover $383.50, but was not entitled to recover his additional claim for $1,250. The judgment awarded Lucas $383.50 and the costs of the action. On December 22, 1942, Lucas filed his notice of appeal.
The Surety Company has filed a motion to dismiss the appeal on the ground that the notice of appeal was not filed in time.
Rule 79 of the Federal Rules of Civil Procedure, 28 U.S.C.A., requires the clerk to keep a book known as "civil docket," and to note therein chronologically "all * * * orders, verdicts, and judgments." Rule 58 of the Rules of Civil Procedure provides that Rule 73 of the Rules of Civil Procedure provides that an appeal shall be taken within 30 days from the entry of the judgment appealed from.
Rule VII of the Supplemental Rules of Civil Procedure of the United States District Court for the Western District of Oklahoma provides:
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...on the 3rd day of November 1950 be set aside and the defendant's motion for new trial is granted * * *." In Lucas v. Western Casualty & Surety Co., 10 Cir., 176 F.2d 506, 507, the clerk made the following entry under date of October 25, 1948: "Enter record of trial before the Court. Counsel......
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