63 F.2d 847 | 5th Cir. | 1933
This was a bill in equity filed on January 27, 1932, by the appellee, the surety on a bond given by tho appellants, who were partners doing business under the name Lakewood Manor Construction Company, for the faithful performance of a contract entered into by the appellants with the United States to furnish all labor and materials and perform all work required for the construction and finishing complete of specified public work at Langley Field, Va., which was referred to as Langley Field Project. In addition to the appellants, Andrew W. Mellon, Walter 0. Woods, and Patrick J. Hurley were named as defendants. As to the three last-named persons, who were not served with process and did not appear in the case, tho bill alleged that they were sued in their respective official capacities as Secretary of the Treasury, as Treasurer of the United States, and as Secretary of War. The bill contained allegations to the following effect: By a provision of the written application by the appellants to the appellee that the latter become surety on the bond mentioned, the appellants, in consideration of the execution of that bond by appellee, assigned, transferred, and conveyed to the appellee all the deferred payments and retained percentages, and any and all moneys and properties that may be due to appellants at the time of any breach or default in said contract, or that thereafter may become due and payable to appellants on account of said contract. Of the estimated amount of work performed by the appellants under said contract up to October 20, 3931, when the last progress payment was made, there had been retained the sum of about $1,554.41 under the terms of the contract. The total amount of the unpaid contract price on the date of completion was about $6,218.77. Under said bond appellee was equally bound with appellants, who are insolvent, for bills for labor and materials incurred by appellants to the amount of about $9,131.50'. Paragraph 10 of the bill contained the following: “The Construction Quartermaster having charge of the contract at Langley Field has stated a final account under the aforementioned contract. That the said Lakewood Manor Construction Company has signed, or is about to sign, voucher for about $6,218.77, and present the same for payment. Plaintiff is informed and believes that the Lakewood Manor Construction Company has, without plaintiff’s consent, and in derogation of its rights, attempted to assign the amount due it as retained percentages and final payment to Old Point National Bank, and has placed in the hands of the finance officer of the United States Army at Fortress Monroe a writing directing that check for retainage and final payment he sent to said hank, and plaintiff alleges that it is the purpose of the Lakewood Manor Construction Company to collect the amount called for by said voucher and apply the same to debts owed by it to divers and sundry persons, firms, and corporations and not incurred in connection with the Langley Field Project.”
The hill contained prayers that appellants be enjoined and restrained from re
It appears from the allegations of the hill and the affidavit above quoted from that the moneys payable by the United States under the contract with the appellants, and the voucher therefor signed by the appellants, were claimed by the Old Point National Bank, which was not made a party to the cause, and that, at the time the bill was filed, that bank was in possession of said voucher, and the appellants, who alone became parties defendant by service of process or appearance, had no interest in those moneys or the voucher therefor. The suit concerns the collection, custody, and disposal of a specific fund, to which the Old Point National Bank, not a party to the suit, has a claim, for which it holds a voucher duly signed by the payees thereof, and of which it might be wholly deprived by a final decree in the ease. In the controversy raised by the suit that bank has an interest of such a nature that a final decree cannot he made without affecting that interest. Such a decree cannot properly be made in a suit to which one who is directly interested in resisting the granting of the relief sought therein is not a party. We are of opinion that it appears from the record that the bank was an indispensable party to the suit. Williams v. Bankhead, 19 Wall. 563, 22 L. Ed. 184; Shields v. Barrow, 17 How. 130, 15 L. Ed. 158; Wilson v. Oswego Township, 151 U. S. 56, 14 S. Ct. 259, 38 L. Ed. 70; Gregory v. Stetson, 133 U. S. 579, 10 S. Ct. 422, 33 L. Ed. 792. No relief under the bill filed being properly grantable in the absence of an indispensable party, the interlocutory decree appealed from was erroneous. Arkansas Southeastern R. Co. v. Union Sawmill Co. (C. C. A.) 154 F. 304, 311. That decree is reversed, and the cause is remanded, with direction that the bill be dismissed.
Reversed.