U.S. Fidelity & Guaranty Co. v. Benson Hardware Co.

• Decision Date: 22 January 1931
• Docket Number: 4 Div. 510.
• Citation: 132 So. 622,222 Ala. 429
• Court: Alabama Supreme Court
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. BENSON HARDWARE CO.

132 So. 622

222 Ala. 429

UNITED STATES FIDELITY & GUARANTY CO. v. BENSON HARDWARE CO.

4 Div. 510.

Supreme Court of Alabama

January 22, 1931

Rehearing Denied March 12, 1931.

Appeal from Circuit Court, Covington County; Emmet S. Thigpen Judge.

Action on road contractor's bond by the Benson Hardware Company against R. S. Taylor and the United States Fidelity &amp Guaranty Company, with intervention by other claimants. From judgments for plaintiff and interveners, defendant last named appeals.

Affirmed in part, reversed in part, and remanded.

Coleman Coleman, Spain & Stewart, of Birmingham, for appellant.

Powell, Albritton & Albritton, A. R. Powell and Marcus J. Fletcher, all of Andalusia, and F. D. McArthur, of Birmingham, for appellee.

Bradley, Baldwin, All & White, of Birmingham, amicus curiæ.

FOSTER J.

The motion to dismiss this appeal presents a question the exact nature of which has not heretofore been considered by this court.

But it has been held in this state that two final decrees even in the same case cannot be the subject of one appeal, when the interested parties to each such decree are not the same. Kelly v. Deegan, 111 Ala. 152, 20 So. 378; Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228. As a general rule, two separate judgments, decrees, or orders cannot be brought up for appellate review by one appeal, when the parties to the judgment are not the same. Creswell v. Commissioners' Court of Greene County, 24 Ala. 282; Boyett v. Kerr, 7 Ala. 9; Read v. Owen, 9 Port. 180; Jones v. Etheridge, 6 Port. 208; 3 Corpus Juris, 355.

This principle has been held to be applicable to assessments for city improvements. It is said that "two or more distinct judgments or decrees, each of which will support an appeal, cannot be united in one appeal." Decatur Land Co. v. New Decatur, 198 Ala. 293, 73 So. 509. The same language is used in Mobile Imp. & B. Co. v. Stein, 158 Ala. 113, 116, 48 So. 368, 17 Ann. Cas. 288.

In the United States court, it is held that, where in the same action separate judgments are rendered against different parties, each is of such a separate nature as that the aggregate of them cannot be considered the amount in controversy on appeal in determining the jurisdiction of the Supreme Court. It is said to be a joinder of distinct causes of action against distinct parties. This rule has frequent application in admiralty cases, as pointed out in our case of Read v. Owen supra. But it is not confined to admiralty, but has general application, as the following cases will demonstrate: Oliver v. Alexander, 6 Pet. 143, 8 L.Ed. 349; Henderson v. Wadsworth, 115 U.S. 264, 6 S.Ct. 140, 29 L.Ed. 377; Ballard Paving Co. v. Mulford, 100 U.S. 147, 25 L.Ed. 591; Russell v. Stansell, 105 U.S. 303, 26 L.Ed. 989.

In the case of National Surety Co. v. U.S. (C. C. A.) 228 F. 577, L. R. A. 1917A, 336, which was such a case as this, the surety company sued out a writ of error from the United States Circuit Court of Appeals to reverse all the judgments of a District Court in the cause. It appears to have been one proceeding, and the court seems to have so treated it, but reviewed the claims of each separately, and treated them as eleven separate judgments. No objection to the procedure was noted by that court. Some were reversed and some affirmed. One of them, whose judgment was reversed, sued out and obtained a writ of error from the United States Supreme Court, and succeeded in obtaining a reversal of the unfavorable judgment rendered by the Circuit Court of Appeals, not affecting the judgments in favor of the others. This is the case hereinafter referred to of Brogan v. National Surety Co., 246 U.S. 257, 38 S.Ct. 250, 62 L.Ed. 703, L. R. A. 1918D, 776.

We observe that, by virtue of the Highway Code of Alabama, Gen. Acts 1927, p. 356 et seq., a road contractor's bond must be conditioned so that it is liable for labor, material, feedstuffs, and supplies for the work. Only one action may be maintained for such labor and supplies, and any creditor may file his claim in such action and be made a party thereto. Judgments shall be awarded to each such creditor for the amount of his debt so created, but the aggregate cannot exceed the gross liability on the bond, and, if it is more than such liability, the amount of each such judgment shall be a pro rata of the gross liability. It is an equitable remedy such as referred to in National Surety Co. v. Graves, 211 Ala. 533, 101 So. 190, enacted to apply to courts of law in cases of this nature.

It seems to us that, if the defendants wish to review all the judgments in such a proceeding, they may do so in a consolidated appeal, for their claim may be that the amount of the aggregate exceeds the liability on the bond. And there is a community of interest between them all on the question of the amount of the total liability. On motion to dismiss the appeal, we are not expected to go through the record to ascertain what the contentions are in this respect. If properly here on such appeal, errors may be assigned as to each judgment separately. As in the Brogan Case, supra, so here, each intervener could have a separate appeal. And on such appeal, though taken separately, but one transcript should be made. We doubt not that the defendants may appeal from any one or more and less than all the judgments. Each separately is thereby treated, leaving unaffected those from which no appeal is taken. By so doing, appellants concede the sufficiency or their gross liability to cover all the claims. So that we think it is optional on the part of the defendants in a suit of this nature to consolidate an appeal from all the judgments, or to appeal from one or more in separate proceedings; but in that event only one transcript will be sent to this court. It will embrace the record pertaining to each judgment from which the appeal was taken. The motion to dismiss the appeal is therefore overruled.

Upon the subject of limitations, urged in argument, we are cited to the construction by the United States Supreme Court of the Federal Act (40 USCA§ 270) as authority to the effect that all interventions under the Alabama act (section 28) must be "within sixty days after the complete performance of said contract and final settlement thereof," within which the original action must be brought.

To have a proper understanding of the federal cases based upon the federal act, as authority for a construction of the Alabama act, it is necessary to note the points of similarity in this respect and their differences. The federal act provides that a suit instituted by a creditor of the contractor on the bond must not be commenced "until after the complete performance of said contract and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract," and that there shall be only one suit, "and any creditor may file his claim in such action and be made party thereto within one year from the completion of the work under said contract, and not later." The Alabama act provides in this connection for only one action, "and any creditor may file his claim in such action and be made party thereto."

A marked distinction is therefore observed at once, in that the federal act not only places a limitation on the time in which a single action must be begun, but also fixes an express limitation on the time in which the creditors shall intervene. This feature of its provisions is referred to in Fleischmann Co. v. U. S., 270 U.S. 349, 46 S.Ct. 284, 70 L.Ed. 624. The Alabama act places no such limitation on the time in which the intervention shall be made. The federal cases, therefore, which refer to the limitation in which creditors must appear, merely enforce the plain provisions of the federal statute. It is not a matter of construction, for the federal statute is clear in that respect. The language of the Alabama statute resembles the federal act in this connection to such a marked degree that any material variation from it must have significance. The clause in each act is in identical language, except one contains the limitation and the other does not. We find no difficulty, therefore, in concluding that in this respect the two acts have a different meaning. Very properly we think the court may, as it did in this case, fix a time in which such creditors may file their claims extending beyond the period of "sixty days after the complete performance of said contract and final settlement thereof." But both acts use the same language in fixing the time in which action shall be begun, except as to the time limit; that is to say, "after the complete performance of said contract and final settlement thereof." The federal cases have interpreted those words to mean the time when the amount due under the contract is determined by the appropriate administrative authority. Mandel v. U.S., 4 F. (2d) 629 (C. C. A. N. J.); Antrim v. Hannan, 18 F. (2d) 548 (C. C. A. Okl.); U.S. v. Title Guar. & Surety Co., 254 F. 958 (C. C. A. Ill.); Illinois Surety Co. v. U. S., 240 U.S. 214, 36 S.Ct. 321, 60 L.Ed. 609; 40 USCA pp. 100, 101. We consider that interpretation binding on us for the reasons stated in State v. So. Surety Co., 221 Ala. 113, 127 So. 805.

After completion of the work, and on March 30, 1929, the engineers of the state made what is called a final estimate, and this was approved by the chief examiner of accounts and the Governor on April 12th, and on that day the final voucher was issued. Suit was filed April 25th thereafter. This was within "sixty days after the complete performance of said contract and final settlement thereof," even if March 30th was fixed as the date of final settlement-a question not necessary to decide on this appeal.

This...