Shandorf v. Standard Sur. & Cas. Co. of New York

• Decision Date: 11 September 1936
• Docket Number: 30851.
• Citation: 268 N.W. 843,198 Minn. 96
• Parties: SHANDORF v. STANDARD SURETY & CASUALTY CO. OF NEW YORK et al.
• Court: Minnesota Supreme Court

268 N.W. 843

198 Minn. 96

SHANDORF v. STANDARD SURETY & CASUALTY CO. OF NEW YORK et al.

No. 30851.

Supreme Court of Minnesota.

September 11, 1936

Appeal from District Court, Rice County; Fred W. Senn, Judge.

Action by Frank W. Shandorf, receiver of the Citizens National Bank of Faribault, against the Standard Surety & Casualty Company of New York and others. Findings for defendants, and, from an order denying his alternative motion for amended findings or a new trial, the plaintiff appeals.

Affirmed.

Syllabus by the Court .

Action on bonds of contractors in state highway project held barred because not brought within one year after filing of notice with commissioner of insurance as required by Mason's Minn.St.1927 (1934 Supp.), § 9705.

John E. Coughlin and Lucius A. Smith, both of Faribault, for appellant.

Melrin, Brown & Sherman, of Minneapolis, for respondents.

LORING, Justice.

Action by an assignee and judgment creditor of an employe of a subcontractor in a state highway project to recover against the surety of the subcontractor and the general contractors and their surety on their bonds. The trial without a jury resulted in findings for defendants, and plaintiff appeals from the order denying his alternative motion for amended findings or a new trial.

The facts out of which this action arises are sufficiently stated in the opinion in No. 30896, Shandorf v. Sampson (Minn.) 268 N.W. 841, which is filed herewith In this action, however, plaintiff alleged and proved the filing on August 13, 1932, with the commissioner of insurance of the notice required by Mason's Minn.St.1927 (1934 Supp.) § 9705. This action was commenced February 2, 1934. The only determinative question is whether the trial court was correct in deciding that the action is barred because not brought ‘ within one year after the filing of such notice.’

Plaintiff's position is that ‘ it seems to have been the intention of the legislature that a claimant against a public contractor should have 90 days after the completion of the contract and the acceptance thereof by the proper public authorities within which to file his claim and one year thereafter within which to commence action.’ The contract here in question was completed and accepted by the state highway commissioner February 16, 1933. It is argued that plaintiff had one year thereafter in which to bring this action rather than one year from August 13, 1932 when the notice was actually filed. We think that contention is unsound and cannot be upheld. The language of the statute is clear and unambiguous. It requires that the action be brought ‘ within one year after the filing of such notice.’ Mason's Minn.St.1927, § 9705, as amended by Laws 1929, c. 369 § 2. Hence there is no room for construction.

Plaintiff's further contention that, because judgment in the supplementary proceedings against defendant's employer (see opinion in No. 30896 filed herewith) was not entered until August 19, 1933 (six days after the expiration of one year from the filing...