90 So. 236 | La. | 1921
The Maryland Casualty Company, a defendant in this suit, has appealed from a judgment rendered against the company, by default, in favor of a codefendant, for $4.426.67, with legal interest from judicial demand.
The suit was instituted by C. A. Dunham & Co. against the Merchants’ Building Company, as owner of a building constructed in Shreveport, and against Louis Locke, who had contracted and given bond to equip the building with a heating and vacuum cleaning system, and against the Maryland Casualty Company, as surety on Locke’s bond, to recover a debt of $1,335, claimed by the plaintiff for materials furnished to Locke and used in installing the heating and cleaning apparatus. ■ Averring that ten other claimants, named in the petition, had recorded claims for materials or labor furnished to the contractor, plaintiff prayed that they be also cited and be given an opportunity to assert their claims. Plaintiff prayed finally for judgment for $1,335, with legal interest, against Louis Locke, the Merchants’ Building Company and the Maryland Casualty Company, in solido, and for such judgment as the evidence might warrant with regard to the other parties who had recorded their claims.
Louis Locke died after the suit was filed, and his widow, having qualified as administratrix of his succession, was cited as defendant in the suit After filing an exception of want of citation and a plea to the jurisdiction of the court, which exception and plea were overruled, the administratrix answered, denying that her husband had defaulted on his contract, and denying that his succession owed any debt by reason of the contract.
The Maryland Casualty Company did not answer the suit, or make an appearance until five days after the judgment had been rendered. The company then filed a motion for a new trial, which was denied, on the ground that the motion was filed too late.
Several, though not all, of the other parties who had recorded their claims against the contractor answered the suit and asserted their claims. As no further proceedings were had with regard to their claims, we assume that they were paid or in some way satisfied, either by the owner of the building or by the surety company. It is said that the succession of the deceased contractor was insolvent.
The answer of the defendant Merchants’ Building Company, praying for judgment against the codefendants, Louis Locke and the Maryland Casualty Company, was not served upon either • of the codefendants; in fact, there was no prayer for citation. Appellee contends that service of citation was not required by the statute under which this eoncursus proceeding was brought (Act 167 of 1912, p. 302, as amended by Act 221 of 1914, p. 418, and as amended by Act 262 of 1916, p. 536).
The decision in the case of Equitable Real Estate Co. v. National Surety Co., 133 La. 448, 63 South. 104, appears to be authority for the proposition that, when the owner of the building provokes a eoncursus proceeding by suit against the contractor and the surety on his bond and against the subcontractors and furnishers of material or labor, any subcontractor or furnisher of materials or labor made defendant in the suit, may obtain judgment against the contractor and his surety without further citation or service of the answer of the party asserting such demand against the contractor and his surety. But we are not so sure that the rule is applicable to a case where, as in this case, a furnisher of materials or labor provokes the eoncursus, and the owner of the building, in answer to the suit, prays for judgment against the contractor and the surety on his bond, for a claim not theretofore heard of. It is not necessary, however, to decide the question in this case, because the surety company has become a party to the suit since the.judgment was rendered, and, for reasons which will be stated hereafter, the judgment must be set aside and the case remanded to the district court.
No evidence whatever was offered to show that the contractor was put in default or failed to carry out his contract, or that any demand was ever made upon him or the surety company. In fact, it can hardly be said that there is proof that the Merchants’ Building Company paid out more than the amount stipulated in the contract; for the statement of the two witnesses that the-labor and materials charged for “were used in compliance with the contract” implies that there was a compliance with the contract.
The written contract and the contractor’s bond were introduced in evidence. Strange to say, the bond, as copied in the record, does not state any condition on which the surety shall be liable. It recites merely that the condition of this obligation is such that, whereas the principal on the bond has entered into a certain contract,, etc., and it concludes abruptly with tie statement that, now,' if the said principal shall do. this and do that, etc.; but there is no statement as to. what the consequence or liability would be if the principal on the bond should not comply with the conditions stipulated. It may be that the clerk overlooked that part of the
The judgment is annulled, and it is ordered that this case be remanded to the district court for further proceedings not inconsistent with the foregoing opinion. The costs incurred in taking the evidence on the trial had in the district court, and the costs of this axopeal, are to be borne by appellee Merchants’ Building Comxoany; the question of liability for other costs is to depend upon the final judgment.