218 F. 915 | D. Idaho | 1914
The contract presently involved, which was for the construction of the post office building at Moscow, Idaho, was completed, and final settlement thereof made, on July 3, 1912. The-complaint herein was filed June 21, 1913. Originally the Interstate Construction Company, which was the contractor, and the Bankers’ Security Company, its surety, were named as defendants; but in an amended complaint filed June 10, 1914, the Maryland Casualty Company was joined as defendant, with the explanation that after the execution of the bond in question the casualty company had, by a written agreement, and for a valuable consideration, succeeded to the business of the security company, and had assumed all the liabilities of the latter, including the obligations of this bond.
Among other provisions, the act of 1905, supra, contains the following: ■
“If no suit should be brought by the United States within six months from the completion and final settlement of said contract, then the person or persons supplying the contractor with labor and materials shall * * * be furnished with a certified copy of said contract and bond, upon which he or they shall have a right of action, and shall bé, and are hereby, authorized to bring suit in the name of the United States in the Circuit Court of the United States in the district in which said contract was to be performed and executed, irrespective of the amount in controversy in such suit, an'd not*917 elsewhere, for Ms or their use and benefit, against said contractor, and his sureties, and to prosecute the same to final judgment and execution: Provided, that where such suit is instituted by any of such creditors on the bond of the contractor it shall * * * be commenced within one year after the performance and final settlement of said contract, and not later: And provided further, that where suit is so instituted by a creditor or by creditors, only one action shall be brought, and any creditor may file his claim in such action and be made party thereto within one year from the completion of the work under said contract, and not later. * * * Provided further, that in all suits instituted under the provisions of this act such personal notice of the pendency of such suits, informing them of their right to intervene as the court may order, shall be given to all known creditors, and in addition thereto notice of publication in some newspaper of general circulation, published in the state or town where the contract is being performed, for at least three successive weeks, the last publication to be at least three months before the time limited therefor.”
For the necessities of this case it will suffice to inquire for whose benefit and for what object this proviso was inserted. Clearly it was not for the protection of the government, for suits of this character cannot he instituted until it has been fully indemnified or has waived its right by failure to sue. It was not for the benefit of the contractor, for he is, of course, liable, regardless of the statute. Nor was it for the protection of the surety, for in no contingency can it be benefited by the giving of the notice, or prejudiced by withholding it. If the failure to publish the notice could under any circumstances operate to extend the time for the assertion of claims, or serve as the basis or the occasion for additional suits, or in any other way increase the burdens or perils of the surety, it would doubtless have the right to insist upon full compliance- with the provision. But such is not the
If then we adopt the view that the suit is in equity, clearly it was not commenced in time against even the security company, under the well-settled principle that such a suit is “commenced” only upon the issuance of subpoena, followed by a bona fide effort to serve the same. United States v. American Lumber Co., 85 Fed. 827, 29 C. C. A. 431; United States v. Miller (C. C.) 164 Fed. 444.
Were it deemed to be an action at law, and hence subject to the rules of practice established by the Idaho Codes, then to be sure it must be held to have been “commenced” as to the security company when the complaint was filed, on June 21, 1913; but even upon that theory the plaintiff would appear to be without footing, for if we reject the view, which I think should prevail, that as to the casualty company the action was not commenced until the amended complaint was filed, still no summons was issued until more than 13 months after the original complaint was filed, whereas the statutes of the state (section 4139, Idaho Revised Codes) authorize the issuance thereof only during the 12 months ensuing after the filing of the complaint.
It follows that the demurrer of the casualty company must be sustained, and as to it the action is dismissed. The demurrer of the contractor will be overruled, and it will be given 60 days in which to answer.