SCHILLING v. FID. GUAR. CO

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Docket Number

No. 31110.

Attorney(S)

J.F. Galloway, of Gulfport, for appellant. This cause was not triable at the return term for the reason no notice had been published notifying all parties who might have claims against the contractor and his bondsmen similar to that of the plaintiff of the pendency of the suit in order that they might come in and assert their rights, if any they had in the suit, in accordance with the provisions of section 5974, providing only one suit could be brought in these public contract matters, and section 5976 of the Code of 1930, providing for the publication of notice to such parties in interest whenever such a suit should be brought. Excello v. U.S. Fidelity Guaranty Co., 111 So. 96, 145 Miss. 599. The court erred in granting the default judgment based upon the plea in bar, because the plea of abatement, filed at the same time and then pending, was inconsistent with the plea in bar. But the court sustained both in the same judgment. The defense of the bar or prescription is affirmative matter and must be specially alleged in all of its essential details. The prime essential, omitted, was that they did not allege at what time the statute came into play, nor that the notice provided for in section 5973 of the Code of 1930 was complied with. Oliver Construction Co. v. Crawford, 107 So. 879. G. Wood Magee, of Monticello, for appellees. This cause was commenced in the circuit court of Lawrence county and process served on all the defendants for more than thirty days before the return day. The case was therefore triable at the August 1933 term. Section 575, Mississippi Code of 1930. The plaintiff did not appear to prosecute his case, nor did he, so far as any one knows, give any reason for his nonappearance. Plaintiff had instituted the suit and it was his duty to follow up and prosecute the suit if he meant in good faith to obtain results. Both the plea in abatement and the plea setting up the statute of limitations were sustained by the court, and the plaintiff making no demand to amend, the cause was dismissed. It was incumbent on the plaintiff in commencing his suit to do the things necessary to confer jurisdiction upon the court. It was necessary for him to cause publication to be made as provided for in section 5976, Mississippi Code 1930 (chapter 217, Laws 1918). Guaranty Company v. Mobley, 143 Miss. 512. The suit was not commenced within one year as required by section 5973, Mississippi Code 1930.

Judges

Anderson, J., delivered the opinion of the court.

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SCHILLING v. UNITED STATES FIDELITY GUARANTY CO. et al.

JUDGMENT.

In suit brought to August, 1933, term of court, judgment for defendants on first day of term, on their special pleas in abatement and limitations filed on that day, held erroneously rendered, since plaintiff had right to demur to special pleas, take issue on them, or reply thereto, which he could not safely do until later day in term (Code 1930, sections 575, 5971 to 5976).

Anderson, J., delivered the opinion of the court.

Appellant brought this action in the circuit court against Berry Applewhite, a firm of contractors, and the surety on their bond, United States Fidelity Guaranty Company. Berry Applewhite had entered into a contract with the town of Ocean Springs to construct a school building therein, and gave the required performance bond with the appellee United States Fidelity Guaranty Company, as surety. Appellant was a subcontractor and sued for the amount he claimed due him by Berry Applewhite. There was a judgment dismissing appellant's suit, from which he prosecutes this appeal.

Sections 5971 to 5976, inclusive, Code of 1930, are the applicable statutes; among other things, they provide their own statute of limitations for subcontractors.

The regular terms of circuit court for Lawrence county are the third Monday of February, and the first Monday of August. This action was brought to the August term, 1933, of the court, and process was personally served more than thirty days before the return term. The first day of the term of the court was the 7th day of August. On that day appellees filed a plea of the general issue and two special pleas, one in abatement of the action, the other, the statute of limitations, and without giving appellant an opportunity to plead to either of the special pleas took a judgment reciting that the cause was heard on the declaration and the two special pleas, and that the court found that the pleas were well taken, and therefore should be sustained, and so ordered.

Under section 575, Code of 1930, appellees had all of the first day of the term of the court within which to plead. Appellant had the right, if advised that the law and facts justified it, to either demur to the special pleas, take issue on them, or reply thereto. This appellant could not safely do until a later day in the term. It was error, therefore, for the court to render judgment on the two special pleas.

Reversed and remanded.

SCHILLING v. UNITED STATES FIDELITY GUARANTY CO. et al.

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