Walker Construction Co. v. Construction Machinery Corporation

• Decision Date: 07 February 1955
• Docket Number: No. 39472,39472
• Parties: WALKER CONSTRUCTION COMPANY et al. v. CONSTRUCTION MACHINERY CORPORATION et al.
• Court: Mississippi Supreme Court

Page 712

77 So.2d 712

223 Miss. 145

WALKER CONSTRUCTION COMPANY et al. v. CONSTRUCTION MACHINERY CORPORATION et al.

No. 39472.

Supreme Court of Mississippi.

Feb. 7, 1955.

Suggestion of Error Overruled March 16, 1955.

See 78 So.2d 475.

Clay B. Tucker, Woodville, J. T. Lowrey, Gloster, for appellants.

Gordon & Gordon, Liberty, James G. Anders, Jr., Gloster, for appellees.

McGEHEE, Chief Justice.

This is an attachment suit in chancery under Section 2729, Code of 1942, wherein the appellant Walker Construction Company, a partnership composed of N. A. Walker and R. D. Moore, a nonresident of the State, and the surety Saint Paul-Mercury Indemnity Company, on the performance bond of the Walker Construction Company, were the principal defendants. The suit was begun by the Construction Machinery Corporation, a nonresident of the State, wherein it was sought to recover of the appellant Walker Construction Company, and its surety on the performance bond, the sum of $2,374.54, alleged to be due as rental of certain equipment used by the nonresident defendant Walker Construction Company in the construction of a sanitary sewerage system for the Town of Gloster, a municipal corporation in Amite County, Mississippi. Two or three different grounds were alleged to sustain the equity jurisdiction of the chancery court wherein the suit was brought, but if the Town of Gloster, which was alleged to be indebted to, or to have the effects of, the nonresident defendant in its hands due or belonging to the nonresident contractor, Walker Construction Company, such fact would in itself be sufficient to have conferred jurisdiction on the chancery court provided the said municipal corporation was subject to be made a defendant, as garnishee, in the attachment in chancery suit, without the consent of the said municipal resident defendant.

The Town of Gloster filed a written objection to the attachment suit with the right of garnishment against it as a resident defendant, but this objection was overruled by the trial court.

Two other alleged creditors of the appellant Walker Construction Company petitioned for and were granted leave to intervene to assert their claims for money claimed to be due for the rental of other equipment for use on the construction job, they being J. E. (Scooter) Tyler and Roy M. Mitchell Contracting Company, Inc., both nonresidents of the State of Mississippi. Likewise, James L. Foreman, doing business as Foreman's Auto Service, a local resident, petitioned for and obtained leave to intervene to assert his claim for money alleged to be due for certain parts furnished and labor performed in the repair of machinery alleged to have been used by the nonresident contractor, Walker Construction Company, in connection with the construction of said sanitary sewerage system.

As a matter of precaution, the complainants had writs of attachment issued against the contractor, and filed suggestions for writs of garnishment against the Town of Gloster, and caused such writs to be issued and served, as in the case of an attachment at law, but without alleging that the contractor owned land and tenements within this State. The writs of attachment against the contractor provided for levying upon the property of the nonresident contractor, both real and personal, but since the contractor was not alleged to own lands and tenements within this State, its personal property was not subject to attachment without the giving of a bond as if the same were attachments at law, unless such nonresident defendant owned personal property in the possession of a resident defendant.

It is immaterial whether or not the Town of Gloster was presently indebted to, or had effects of, the nonresident defendant, if the said municipality was not subject to attachment and garnishment without its consent, and where such consent had not been obtained.

Personal service of process was had on R. D. Moore, individually, and as one of the partners in the Walker Construction Company, the same having been served on December 10, 1953, the date of the filing of the original suit by the complainant, Construction Machinery Corporation. Process by publication was had on the other resident defendant, N. A. Walker. Lawful process was also had upon the contractor's surety, Saint Paul-Mercury Indemnity Company, so as to subject it to the jurisdiction of the court for the rendition of a judgment against it in personam, provided the suit was not premature as to such surety, and if it were liable for the claim sued on.

However, the appellant Walker Construction Company filed motions to quash the attachment against it and to vacate the garnishments against the Town of Gloster, on the grounds that neither of the said defendants were subject to the attachments and garnishments. Upon these motions being overruled, the appellant Walker Construction Company filed answers to the several bills of complaint of the original complainant, Construction Machinery Corporation and of the intervenors. The said appellant thereby entered its appearance and subjected itself to the jurisdiction of the court for a rendition of decrees in personam against it in favor of the several complainants, provided upon a hearing of the case on its merits the said appellant contractor is shown to be liable for the claim sued on.

The surety, Saint Paul-Mercury Indemnity Company, interposed a demurrer to each of the bills of complaint on the grounds, First, that it was not liable under the terms of its bond, made Exhibit B to the bill of complaint, for money due as rental on equipment; Second, that the construction contract, the performance of which it had become a surety, had not been completely performed at the time of the institution of the original suits and the filing of the bills of the intervenors; and, Third, that the six months had not elapsed within which the obligee in the bond, Town of Gloster, had the first right to sue the surety on the bond. This demurrer was sustained without prejudice, under and by virtue of ...