United States Fidelity & Guar. Co. v. Henderson County
Decision Date | 12 June 1923 |
Docket Number | (No. 986.) |
Citation | 253 S.W. 835 |
Parties | UNITED STATES FIDELITY & GUARANTY CO. et al. v. HENDERSON COUNTY et al. |
Court | Texas Court of Appeals |
Appeal from District Court, Henderson County; L. D. Guinn, Judge.
Action by Henderson County and others against the United States Fidelity & Guaranty Company and others, in which interventions were filed. From judgment for interveners, defendants appeal. Affirmed in part, in part reversed and rendered, and in part reversed and remanded.
Seay, Seay, Malone & Lipscomb, of Dallas, and Miller & Miller, of Athens, for appellants.
E. A. Landman, of Athens, for appellees.
In 1919, Henderson county entered into a written contract with Williams, Burk & Co., for the improvement of one of its public roads. The following provisions of the contract are material to the facts of this appeal:
The plans and specifications contained the following provisions material to this appeal:
Williams, Burk & Co., as principal, and United States Fidelity & Guaranty Company, as surety, executed to Henderson county the following bond:
As the contractors did not complete the work to the satisfaction of Henderson county, it took charge of the work and had it completed by other contractors and then filed suit against the original contractors and their surety on the foregoing bond. After the suit was filed, a large number of claimants intervened upon the allegation that the contractors and their sureties were liable to them upon the bond for labor and material furnished in the construction of the road. Pending trial, the contractors and the surety company settled the claim of Henderson county under a compromise agreement, by the terms of which they paid the county $8,000, which agreement was embodied in a judgment duly entered of record. W. R. Bishop, the regular district judge of Henderson county, was disqualified to try this case, and upon his certificate to that effect, the Governor designated Judge L. D. Guinn of the Second district, who proceeded to try the case on the 10th day of April, 1922, at a special term of the court called by Judge Bishop. This appeal is prosecuted by the contractors and their surety from a judgment entered against them in favor of the several interveners upon the answers of the jury to special issues. The transcript in this case contains about 1,000 pages, the statement of facts 260 pages, and the briefs about 500 pages. Appellants are urging 123 assignments of error, and appellees many cross-assignments. While under one style and number, this appeal, in effect, embodies about 30 different records, relating to the several interveners, many of them presenting questions peculiar to the several interventions. Manifestly, it is impracticable to take up appellants' many assignments and discuss them as they relate to each intervention. We believe it is sufficient to dispose of this appeal by discussing the general propositions involved and then relate them to the several interventions, as hereinafter indicated.
The court did not err in overruling appellants' plea of abatement, which they urged upon the proposition that under articles 6394f and 6394j, Texas Complete Statutes (Vernon's Sayles' Ann. Civ. St. 1914, arts. 6394f, 6394j), this suit could not be tried until twelve months after the completion of the work. We could dispose of this proposition upon the ground that appellants have made no statement showing when the work was completed. The record shows that service was complete upon defendants at the August term, 1921, and as the case was not tried until April 10, 1922, it may be the work had been completed more than twelve months when the case was tried. But, under the cited articles, the court did not err in refusing to abate the suit. These articles provide that claimants under the bond of a public contractor must institute their suit or intervene in the suit of the state or municipality within twelve months after the completion of the work. It is also provided that the suit cannot be tried until one week after the completion of three weeks' publication of notice of the pendency of such suit. It is conceded that the notice was published and that more than one week had elapsed after such publication before the case was tried. The requirement that the lis pendens notice be published constitutes a limitation upon the time within which interventions may be filed. While, in general terms, it is provided that such interventions may be filed within one year from the completion of the work, yet giving effect to all the provisions of the act, the statute requires that they be filed before the case is tried, and if the case is tried after due publication of lis pendens notice has been made, all interventions not filed are barred, though the one-year period of limitation has not matured. We have not been cited to any decision of this state construing the articles cited supra, but they are in identical terms, as to their conditions and obligations, with section 6923, United States Compiled Statutes. We have given to our statute...
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