Tompkins v. Forrestal

54 Minn. 119 | Minn. | 1893

Collins, J.

The bond to the city of Duluth on which plaintiffs brought this action in their own names bore date May 20, 1890, and was therefore executed under the provisions of the statute then in force. (Sp. Laws 1887, ch. 2, subch. 5, § 5.) The plaintiffs contend that their action was properly brought, because brought in accordance with the provisions of an amendment to said section 5, found in Sp. Laws 1891, ch. 55, § 15, and the first question for determination is whether that part of the amendatory statute which confers upon one who has performed labor or has furnished material upon a contract with the city, and has not been paid, the-right to bring a suit in his own name upon the bond, has application to bonds executed prior to the amendment. Under the statute as it existed when the bond was given it was held, in State Bank of Duluth v. Heuey, 40 Minn. 145, (41 N. W. Rep. 411,) that the-bond was designed for the benefit of laborers as well as the city, and. was intended to secure their wages, but it was also held that the city alone was the proper party to maintain an action to enforce the liability. It follows that, unless the provisions of the act of 1891 can be applied to cases arising upon bonds executed prior to its passage, these plaintiffs have no standing in court; the remedy is exclusively in the hands of the city. The rights of laborers and. material men, and the liabilities of these respondents as sureties upon the contractors’ bond, were fixed and established by the statute of 1887. The former had the right to look to the sureties upon the bond for payment in case the contractors failed to pay for labor performed or materials furnished in the performance of the contract; in other words, they had a beneficial interest in the bond from the time they commenced to furnish materials, which interest was available in an action to enforce the liability. To be sure, the remedy was enforceable in a specified manner, and only by means of an action brought in the name of the city, although it might not have the slightest interest in the result of the controversy. This requirement of the law, introduced, probably, for-the convenience and protection of ali who might have a cause of action against the bondsmen, was nothing more than a form or method of procedure, provided for the determination of a controversy arising out of the contract bond, and in no manner did it affect the rights or the liability of either party. By the statute of 1891 this form or method of procedure to enforce a liability arising upon such bonds was changed, and authority was conferred upon laborers and material men to maintain actions in their own names. Instead of making the city the party plaintiff to the controversy, the statute gave to the real plaintiff authority to direetly prosecute the action. No attempt was made to change the nature or the extent of an existing remedy so as to affect or impair the rights or liabilities of the parties as fixed and established when the bond was executed. The statute of 1891 dealt with the method of procedure only, and no person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. So, when a new statute deals with the method of procedure only, it applies, prima facie, to all actions,— those which have already accrued and those of the future. Suth. Stat. Const. § 482; Green v. Biddle, 8 Wheat. 1. It is well settled that statutes which change the rule as to parties necessary to the determination of controversies will take effect upon prior as well as subsequent contracts or transactions and the actions arising therefrom. Wade, Retro. Laws, § 214; Augusta Bank v. Augusta, 49 Me. 507; Hepburn v. Curts, 7 Watts, 800; Crawford v. Branch Bank of Mobile, 7 How. 279. Before this amendment of 1891, the position of plaintiffs and all other persons similarly situated was not unlike that of an assignee of a chose in action at common law. Suit to enforce a right would have to be brought in the name of another. But upon the passage of the statute now in force, requiring all actions to be prosecuted in the name of the real party in interest, we do not Imagine that any one seriously questioned the right of an assignee to bring suit in his own name upon a chose in action, although he had acquired it prior to the enactment of the statute, which radically changed the common-law rule, and gave an entirely new remedy. The rule laid down in Giles v. Giles, 22 Minn. 348; Wilson v. Red Wing School Dist., Id. 488; State v. Waholz, 28 Minn. 114, (9 N. W. Rep. 578;) and other cases,—that, unless the contrary clearly appears to have been intended by the legislature, statutes should be construed to be prospective, and not retrospective, in their scope and operation,—is not pertinent to the facts here, because the amendment related solely to the method of procedure for the enforcement of an existing obligation and liability.

On the trial the court below found in plaintiffs’ favor on all of the issues presented by the pleadings, and also found as a fact “that there is no evidence in this case that the city of Duluth ever had any notice of the pendency of this action.” Based on this finding, undoubtedly, its conclusion of law was that these respondents were entitled to judgment against plaintiffs for their costs and disbursements. This was error. The statute (section 15, supra) requires that, at the time suit is brought by a person in his own name against a contractor and his bondsmen, notice that the suit has been commenced shall be given to the city. This notice must contain certain details, and no judgment shall be entered in any such action, unless the plaintiff, shall prove to the satisfaction of the court that this notice was served upon the city twenty days before the time of the trial. The statute further provides for the filing of a complaint in intervention by the city, if deemed advisable, within said twenty days, for the benefit and protection of others who may be in need of recourse upon the bond. It clearly appears from an examination of the law that the giving of this notice to the city is no part of a plaintiff’s cause of action, for it need not be given until twenty days prior to the time of trial. It follows naturally that it was not incumbent upon the plaintiffs to prove upon the trial that such notice had been given, nor should the fact have been passed upon by the trial court. Judgment could not have been entered, however, until the fact had been shown to the satisfaction of the court, and this could have been done at a time subsequent to the filing of the findings. It does not appear from the record before us that a notice was sensed on the city before the trial, but afterwards, and after the findings had been made, plaintiffs’ counsel caused such notice to be served. They then waited more than twenty days, and upon an affidavit of service, and an affidavit that the city had not filed its complaint in intervention, and had not appeared in said action in any way, duly moved the trial court for an amendment to its findings, striking out that portion which referred to the service of notice upon the city, and inserting one by which the exact amount due to plaintiffs would be stated, and also for a proper change in its conclusion of law. This motion was denied, when it should have been granted. The failure to serve the notice prior to the trial was a mere irregularity, which cannot be permitted to defeat recovery upon a just claim. The notice was subsequently given, and that it was simply formal, and of no real importance, is shown by the fact that the city authorities had no complaint in intervention to file, and evidently had no interest in the action. If the city had seen fit to file such a complaint, the plaintiffs would probably have been obliged to again try their case, but nothing more serious than this could have resulted. As judgment should have been entered as demanded in the complaint, the case is remanded, with directions that such a judgment be now entered. Order reversed.

(Opinion published 35 N. W. Rep. 813.)

VandeebuRgh, J., took no part.