Universal Elec. Const. Co. of Alabama v. Robbins

• Decision Date: 22 February 1940
• Docket Number: 8 Div. 15.
• Citation: 239 Ala. 105,194 So. 194
• Court: Alabama Supreme Court
• Parties: UNIVERSAL ELECTRIC CONST. CO. OF ALABAMA ET AL. v. ROBBINS.

194 So. 194

239 Ala. 105

UNIVERSAL ELECTRIC CONST. CO. OF ALABAMA ET AL. v. ROBBINS.

8 Div. 15.

Supreme Court of Alabama

February 22, 1940

Appeal from Circuit Court, Colbert County; Chas. P. Almon, Judge.

Action on construction contract and bond by Dewey Robbins, doing business as Tri-Cities Plumbing & Electrical Supply Company against the Universal Electric Construction Company of Alabama and Royal Indemnity Company. From a judgment or order granting plaintiff's motion for a new trial, defendants appeal and apply for mandamus to review an order overruling a motion to quash service of summons.

Affirmed mandamus denied.

Stockton Cooke, Jr., of Sheffield, for appellants.

R. L Polk, of Sheffield, and J. E. Delony, Jr., of Tuscumbia, for appellee.

KNIGHT Justice.

The appeal in this cause was taken from an order or judgment of the circuit court granting the plaintiff a new trial. While the bond given on the appeal does not state in terms that the appeal was from the judgment granting a new trial to plaintiff, yet that was the purpose and scope of the appeal.

The first submission here of this cause was on motion of appellee to strike the bill of exceptions and to dismiss the appeal. On that submission we held that the bill of exceptions was not filed within ninety days after the judgment was entered on the motion for new trial, and the bill of exceptions was stricken, but we refused to dismiss the appeal.

The judgment granting the motion for new trial served to restore the case to the trial docket, and as no order was made by the court which is reviewable on appeal in the present state or status of the case, it follows that the case, in so far as presented by the appeal, must be affirmed.

However, along with the appeal, the appellants seek by mandamus to review a certain ruling or rulings of the lower court, in overruling their motion to quash the service of the summons and complaint attempted to be made upon them. For the purpose of moving to quash the service each of the defendants appeared specially.

The record shows that the summons and complaint was "executed by serving two copies thereof, one for the Universal Electric Construction Company of Alabama, a corporation, and one for the Royal Indemnity Company, a corporation, on L. M. Manning, President of the Board of City Commissioners of the City of Sheffield, Alabama." A proper determination of the question of whether the defendants--appellants--were legally served with the process issuing upon the complaint filed against them, depends upon whether the bond executed by the said Universal Electric Construction Company of Alabama, as principal, and the Royal Indemnity Company as its surety was such a bond as was required to be executed by the contractor and his surety by the provisions of the Act of the Legislature of 1935, General Acts, 1935, p. 70, or was it so intended by the parties thereto. If so, obligors' liability is governed thereby. Magic City Paint & Varnish Co. v. American Surety Company of New York, 228 Ala. 40, 152 So. 42; United States Fidelity & Guaranty Co. v. Benson Hardware Co., 222 Ala. 429, 132 So. 622; United States Fidelity & Guaranty Co. v. Yeilding Bros., 225 Ala. 307, 143 So. 176; Limestone County v. Montgomery, 226 Ala. 266, 146 So. 607, 87 A.L.R. 164; American Book Co. v. State, 216 Ala. 367, 113 So. 592; Royal Indemnity Co. v. Young & Vann Supply Co., 225 Ala. 591, 144 So. 532.

The suit was brought by Dewey Robbins, doing business under the style and name of Tri-Cities Plumbing and Electrical Supply Company, against the Universal Electric Construction Company, who had entered into a contract with the City of Sheffield for the construction of an electric distribution system, and against the Royal Indemnity Company, who was surety on the bond sued on. This bond was made payable to the City of Sheffield, Alabama, as the applicable Act required.

The complaint avers that the plaintiff, under its contract with the Universal Electric Construction Company, furnished the said contractor labor, materials and supplies for and in the prosecution of the work provided for in the contractor's said contract with the City of Sheffield, to the amount of $3,500, and that said amount was past due and unpaid, etc.

Section 1 of the Act above referred to reads: "Any person, firm or corporation entering into a contract with the State or any County or municipal corporation or sub-division thereof in this State for the repair, construction or prosecution of any public buildings or public work, highways or bridges, shall be required, before commencing such work, to execute a performance bond, with penalty equal to 50 percent of the amount of the contract price, and in addition thereto, another bond with good and sufficient surety, payable to the State, County or municipal corporation or subdivision, letting the contract, in an amount not less than 50% of the contract price, with the obligation that such contractor or contractors shall promptly make payments to all persons supplying him or them with labor, materials, feed-stuffs or supplies for or in the prosecution of the work provided for in such contract, and for the payment of reasonable attorneys fees, incurred by successful claimants or plaintiffs in suits on said bond; and any person, firm or corporation that has furnished labor, materials, feed-stuffs or supplies for or in the prosecution or repair of any public building or public work, highways or bridges, and payment for which has not been made, shall be authorized to institute an action upon said bond in his or their name or names and to have their rights and claims adjudicated in such action and judgment rendered thereon; provided, however, that no suit shall be instituted on said bond until after forty-five days written notice to the surety thereon of the amount claimed to be due and of the nature of the claim. Such suit shall be commenced not later than one year from the date of final settlement of said contract. The giving of said notice by registered mail, postage prepaid, addressed to the surety at any of its places of business or offices shall be deemed sufficient hereunder. In the event the surety or contractor fails to pay such claim in full within forty-five days from the mailing of such notice, then such person or persons shall be entitled to recover of the contractor and surety, in addition to the amount of said claim, a reasonable attorney's fee, together with interest on such claim from the date of such notice. Every person or persons having a right of action on said last described bond as herein provided shall, upon written application to the authority under the direction of whom such work has been prosecuted, setting out that labor, material, feed-stuffs or supplies for such work has been supplied by him or them and that payment therefor has not been made, be promptly furnished a certified copy of said additional bond and contract. Such claimant shall be authorized to bring suit on said bond in the county in which the work provided for in said contract is to be performed, or in any county where the contractor or his surety does business, for his or their use and benefit against said contractor and his surety or either of them. In addition to any other legal mode of service, service of summons and other process in suits brought in the county where the work is let or done may be had on the contractor and/or the surety on the last described bond, by leaving a copy of the summons and complaint or other pleading or process, with the Chairman of the State Highway Commission if the contract be a state highway contract or with the executive officer of the city, town, board, commission or authority letting the contract, or charged with the payment of the contract price, if the contract be not a state highway contract. The bond last described shall have a provision binding the principal contractor and surety to the mode of service above described; and consenting that such service shall be the same as personal service on the contractor and/or surety. Immediately on service being made on the Chairman of the State Highway Commission or executive office[r] of a city, town, board, commission or authority, it will be the duty of such Chairman or executive officer to immediately mail a copy of such process to the contractor and surety, at the address given in the bond."

The bond executed by the said contractor and its surety, the said Royal Indemnity Company, appears in the report of the case.

Both the contract of the said Universal Electric Construction Company with the City of Sheffield and the bond executed by the contractor and its surety, the Royal Indemnity Company, are set out in extenso in the complaint.

It is to be noticed that the bond contains this provision: "Now therefore, if the principal shall promptly make payment to all persons supplying labor in the prosecution of the work provided for in said contract, and any and all duly authorized modifications of said contract that may hereafter be made, notice of which modifications to the surety being hereby waived, then this obligation to be void; otherwise to remain in full force and virtue."

No mention whatever is made of any obligation to pay persons supplying the contractor "materials, feed-stuffs or supplies for or in the prosecution of the work provided for in such contract," or "for the payment of reasonable attorneys fees, incurred by successful claimants or plaint...