Title Guaranty & Sur Co. of Scranton, Pa. v. Guernsey

• Decision Date: 21 April 1913
• Docket Number: 2,022.
• Court: U.S. District Court — Western District of Washington
• Parties: TITLE GUARANTY & SURETY CO. OF SCRANTON, PA., v. GUERNSEY et al.

205 F. 91

TITLE GUARANTY & SURETY CO. OF SCRANTON, PA., v. GUERNSEY et al.

No. 2,022.

United States District Court, W.D. Washington, Northern Division.

April 21, 1913

James B. Murphy, of Seattle, Wash., for complainant.

W. V Tanner and S. H. Kelleran, both of Olympia, Wash., for defendants State of Washington, Roberts, Lewis and Clausen.

Higgins & Hughes, of Seattle, Wash., for defendants Frye & Co.

Walter S. Fulton, of Seattle, Wash., for defendant Union Machinery &amp Supply Co.

CUSHMAN District Judge.

The state of Washington heretofore entered into a contract with W. F. Guernsey & Co. for the construction of state aid road No. 69, and the complainant, the Title Guaranty & Surety Company, of Scranton, Pa., became surety on the contractor's bond, which contained the usual conditions for the faithful performance of the contract and the payment of all claims for labor and material. The contract has been fully performed by the contractor. A considerable sum remains due from the state on account of the contract price. The contractor owes large sums for labor and material, and has made assignments of the balance due from the state. Under these circumstances the complainant, as surety on the bond, filed the present bill in this court against the contractor, the state of Washington W. J. Roberts, as highway commissioner, John G. Lewis, as treasurer, and Charles W. Clausen, as auditor, of said state, and others, for a settlement and adjustment of all claims arising out of the contract, and to subject the balance due from the state to the payment and satisfaction of claims against its principal, the contractor.

The Attorney General of the state filed answers and cross-bills for the state of Washington, W. J. Roberts, highway commissioner, John G. Lewis, treasurer, and Charles W. Clausen, auditor, in the nature of a bill of interpleader, in which it was admitted that there was a balance due from the state to the contractor in the sum of upwards of $20,000, the exact amount not being ascertained at that time, and a willingness was expressed to deposit the sum so due in the registry of this court, to be apportioned and distributed to the parties thereto entitled. The contractor, by cross-bill, denied the amount alleged to be due by the state under the contract, and set forth a claim against the state for several thousand dollars additional, for which judgment was prayed. To this cross-bill the state interposed a demurrer.

Heretofore the state's demurrer to this cross-bill of the contractor was sustained. The matter is now before the court upon the following motions:

(1) Motion of the state of Washington to dismiss its cross-bill in the nature of an interpleader against the complainant.

(2) Motion of the state of Washington to withdraw its answer to the amended and supplemental bill and substitute a motion to dismiss.

(3) Motion of the state of Washington to dismiss the amended and supplemental bill as against it.

(4) Motions of the defendants W. J. Roberts, highway commissioner, John G. Lewis, treasurer, and Charles W. Clausen, auditor, of the state of Washington, to dismiss their cross-bill.

(5) Motions of the defendants W. J. Roberts, highway commissioner, John G. Lewis, treasurer, and Charles W. Clausen, auditor, of the state of Washington, to dismiss the cross-complaint of the defendant Union Machinery & Supply Company.

(6) Motions of the defendants W. J. Roberts, highway commissioner, John G. Lewis, treasurer, and Charles W. Clausen, auditor, of the state of Washington, to dismiss the amended and supplemental bill of complaint.

(7) Motions of the defendants W. J. Roberts, highway commissioner, John G. Lewis, treasurer, and Charles W. Clausen, auditor, of the state of Washington, to dismiss the cross-complaint of the defendants Frye & Co.

(8) Motions of the defendants W. J. Roberts, highway commissioner, John G. Lewis, treasurer, and Charles W. Clausen, auditor, of the state of Washington, to withdraw their answers to the amended and supplemental complaint and substitute a motion to dismiss.

The authorities relied upon by the defendants in support of their various motions are as follows: Governor of Georgia v Madrazo, 1 Pet. 110, 7 L.Ed. 73; Cunningham v. Macon, etc., Ry. Co., 109 U.S. 447, 3 Sup.Ct. 292, 27 L.Ed. 992; Louisiana v. Jammel, 107 U.S. 713, 2 Sup.Ct. 128, 27 L.Ed. 448; Pennoyer v. McConnaughy, 140 U.S. 1, 11 Sup.Ct. 699, 35 L.Ed. 363; Ex parte Ayers, 123 U.S. 443, 8 Sup.Ct. 164, 31 L.Ed. 216; Belknap v. Schild, 161 U.S. 12, 16 Sup.Ct. 443, 40 L.Ed. 599; North Carolina v. Temple, 144 U.S. 22, 10 Sup.Ct. 509, 33 L.Ed. 849; Hagood v. Southern, 117 U.S. 53, 6 Sup.Ct. 608, 29 L.Ed. 805; State ex rel. Drake v. Doyle, 40 Wis. 175, 22 Am.Rep. 692; Smith v. Reeves, 178 U.S. 436, 20 Sup.Ct. 919, 44 L.Ed. 1140; article 2, Sec. 26, Constitution of the State of Washington; Rem. & Bal. Code, Sec. 886; Stanley v. Schwalby, 162 U.S. 255, 16 Sup.Ct. 754, 40 L.Ed. 960; People v. Sanitary District, 210 Ill. 171, 71 N.E. 334; Kern v. Huidekoper, 103 U.S. 485, 26 L.Ed. 354; 16 Cyc. 314; 22 Encyc.of Pl. & Pr. 1323; 16 Encyc.of Pl. & Pr. 597 (relating to withdrawal of pleas); Blalock v. Condon, 51 Wash. 604, 99 P. 733; Pullman Palace Car Co. v. Central Transportation Co., 171 U.S. 138, 18 Sup.Ct. 808, 43 L.Ed. 108; Simpkins, Federal Equity Suit (2d Ed.) 349, and cases cited; C. & A.R.R. Co. v. Rolling Mill Co., 109 U.S. 702, 713, 3 Sup.Ct. 594, 27 L.Ed. 1081; Dunham v. Carson, 37 S.C. 269-281, 15 S.E. 960; Gilmore v. Bort (C.C.) 134 F. 658; McCabe v. So. Railway (C.C.) 107 F. 213; Pennsylvania, etc., Co. v. Globe, etc., Co. (C.C.) 121 F. 1015; Bridesburg Mfg. Co. Appeal, 106 Pa. 275; 23 Cyc. 5, 6; Baltimore, etc., Railway Co. v. Arthur, 90 N.Y....