United States Fidelity & Guaranty Co. v. Mobley

• Decision Date: 24 May 1926
• Docket Number: 25720
• Citation: 108 So. 501,143 Miss. 512
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. MOBLEY. [*]
• Court: Mississippi Supreme Court

108 So. 501

143 Miss. 512

UNITED STATES FIDELITY & GUARANTY CO. v. MOBLEY. ^[*]

No. 25720

Supreme Court of Mississippi

May 24, 1926

Division B

(Division B,)

1. HIGHWAYS. As action to recover on bond executed by road contractor is statutory, and requirements must be observed in all essential respects to recover thereunder (Laws 1918 chapter 217).

Laws 1918, chapter 217, provides a definite procedure to be followed in bringing action on bond executed by road contractor, and, as action is statutory, requirements must be observed in all essential respects in order to recover thereunder.

2. HIGHWAYS. Failure in suit on bond of road contractor to publish notice in county where work was done held fatal error, notwithstanding such failure was not pleaded in abatement nor called to court's attention in any other way (Laws 1918, chapter 217, sections 4, 6).

In action under Laws 1918, chapter 217, to recover on bond of road contractor, failure to make publication in county where work was done as required by section 6 held fatal error, notwithstanding failure was not pleaded in abatement nor called to court's attention any other way since section 4 requires there should be but one suit, and necessary parties are to be brought in by such publication.

HON. V A. GRIFFITH, Chancellor.

APPEAL from chancery court of Perry county, HON. V. A. GRIFFITH Chancellor.

Suit by H. M. Mobley against W. D. Mobley, J. R. S. Edwards, and the United States Fidelity & Guaranty Company. Decree for plaintiff against defendant last named, and it appeals. Reversed and remanded.

Decree reversed and case remanded.

Stevens & Heidelberg, for appellant.

I. Insufficient notice published of pendency of suit. The lower court proceeded to an adjudication of the case in face of the fact that the notice required to be published under the provisions of chapter 217, Laws of 1918, section 6 thereof, had not been "published in the county or town where the contract is being performed." The only notice was published in Perry county and even though properly published in that county, did not comply with said act.

If such a notice had been published in Jefferson county as the one published in Perry county, it would not have been sufficient notice to other interested parties on account of the fact that it does not sufficiently identify the contract sued on, or the work or project involved in the suit. A person having a claim against the same contractors and their surety on the said project in Jefferson county would not be advised by such a notice as the one in question that there was a suit pending with reference to that particular project, in which they were expected to appear and propound any claim they might have.

The act contemplates only one suit which would be for the equal benefit of all claimants and that all claims be heard in this one suit and the rights of all claimants adjudicated therein. The scheme of the statute to allow only one suit to which all persons having an interest must be invited is a wise one designed to protect the interests of the public and those who furnish labor and material going into public work and at the same time protects the surety against any exceeding of the limit of the surety's liability on the bond. Such other claimants are necessary parties to a suit instituted on the bond by any party interested. Decree could not be rendered in view of the lack of notice to other claimants. Mississippi Chancery Practice, at section 107 et seq.

We confidently submit that the complainant and the court were without power to proceed to a final decree in this matter until the statutory notice to all parties by due publication had been given and proof thereof submitted to the court.

That the objection that a necessary party is not joined in the suit may be made in the answer and availed of on the trial or appeal, we submit has been decided in the affirmative by this court. Rodd v. Dirbridge, 53 Miss. 696; Griffin v. Lovell, 42 Miss. 404; Clayton v. Merrett, 52 Miss. at 360.

The distinction between a proper party and a necessary party is treated in Eustice v. Holmes, 52 Miss. 305; Beason v. Coleman, 92 Miss. 626; 1 Cyc., p. 129.

As stated by the learned chancellor, the new Chancery Practice Act does not apply to the pending suit and the question of procedure here under discussion must be solved under the practice obtaining prior to the adoption of that act.

N. C. Hill, for appellee.

Counsel for appellant contend that sufficient notice was not given by publication to the creditors of the contractors, if any there were, of the pendency of this suit, and they ask for a reversal of the decree on that ground; but, we submit, making publication of notice to creditors is not jurisdictional, but merely directory; that the court obtained jurisdiction of the cause and of the parties necessary when summons was served upon them to respond to and make defense of the claim against them filed by appellee; the said contractors and the surety on their bond, appellant here, upon being served with process to answer as a defendant, appeared and obtained an order from the court allowing them sixty days in which to answer suit; they made no objection that proper notice to all creditors to appear had not been given; they appeared just before the next term of the court, filed an answer and cross-bill, but made no objection that necessary or proper parties had not been brought into the cause, but consented in writing that the cause should be continued for the term and agreed that it be set for trial in vacation; and appeared at the time and place fixed for the hearing on its merits with their witnesses when the case was threshed out on the issues presented by the pleadings, without making request that the cause be delayed because of want of sufficient publication for creditors to propound their claims or objecting to the trial of the cause for the want of jurisdiction of the court to try it until sufficient publication was made; and, in fact, made no claim or contention at said trial of the insufficiency of the notice to creditors except merely to refer to it rather casually in their argument to the court.

We...