Opinion
No. 39472.
February 7, 1955.
1. Attachment in chancery — entry of appearance — judgment in personam.
In attachment in chancery by a nonresident construction machinery company against nonresident defendant construction company and surety on its performance bond to recover monies allegedly due as rental of equipment used in performance of contract for construction of sanitary sewerage system for town, wherein other creditors of construction company intervened, town filed written objections to attachment suit, as garnishee, surety company interposed demurrers to original bill and bills of intervenors, and nonresident construction company filed motions to quash attachment against it and to vacate garnishments against town, and upon overruling of such motions, filed answers to the bills of complaint, company thereby entered its appearance and subjected itself to the jurisdiction of the Court for the rendition of decrees in personam against it provided it was liable for the claims sued on.
2. Attachment in chancery — demurrers of surety properly sustained — suit prematurely brought.
Demurrers of surety on performance bond of nonresident construction company were properly sustained in that suit was premature where the contract with municipality had not been completely performed at time of the institution of the original suit and six months had not elapsed within which the obligee, the municipality, had the first right to sue the surety on the bond. Secs. 9014-6, Code 1942.
3. Attachment in chancery — objections of municipality to — should have been sustained.
In such suit, objections by municipality to attachment in chancery, as defendant garnishee, should have been sustained, Section 2783, Code of 1942, being inapplicable. Sec. 2783, Code 1942.
4. Attachment in chancery — demurrers — granting time within which to amend on sustaining of — not error.
Where demurrer of construction company to bill of intervenor was sustained, fact that complainant was granted thirty days within which to amend the bill was not error.
5. Attachment in chancery — jurisdiction motion to quash.
In such suit, motion of nonresident construction company to quash the attachment and garnishment should have been sustained where jurisdictional basis therefor against the municipality disappeared on the filing of objections of the municipality being sued as a resident defendant in attachment and as a garnishee. Sec. 2729, Code 1942.
6. Appeal — interlocutory — complainants' appeal affirmed — defendants' appeal reversed — cause remanded.
In such case, the interlocutory appeals granted the nonresident construction company and municipality, to settle the controlling principles of the case, were reversed to the extent that their motions to quash the attachments were overruled; and the interlocutory appeals granted to intervenors as to sustaining the demurrers of surety were affirmed, and the cause remanded to be proceeded with against the nonresident construction contractor, should the intervenors so desire, the original complainant having accepted the tender paid into Court by nonresident construction contractor, and being no longer interested in the suit. Sec. 2729, Code 1942.
Headnotes as approved by McGehee, C.J.
ON SUGGESTION OF ERRORMarch 16, 1955 78 So.2d 475
7. Appeal — attachment — principal and surety — intervention — remand.
A remand in an attachment suit against a nonresident construction company to recover on a performance bond would be modified so as to permit the intervenors to proceed against the surety on the bond where at time of the original remand rights to proceed against the surety had not matured and it was not intended to preclude the assertion of any rights that may have accrued against the sureties. Secs. 9014-9016, Code 1942.
Headnote as approved by Arrington, J.
APPEAL from the Chancery Court of Amite County; F.D. HEWITT, Chancellor.
Clay B. Tucker, Woodville; J.T. Lowry, Gloster, for appellant Town of Gloster, Mississippi.
I. Garnishment statutes not applicable. Craig v. Gaddis, 171 Miss. 379, 157 So. 684; Gulf Refining Co. v. Mauney, 191 Miss. 526, 3 So.2d 844; Mid-South Paving Co. v. State Highway Comm., 197 Miss. 751, 20 So.2d 834; Sec. 2730, Code 1942.
II. Objection of Town of Gloster to being subjected to attachment in chancery and to jurisdiction of the Court. Clarksdale Compress Co. v. W.R. Caldwell Co., 80 Miss. 343-8, 31 So. 790; Dollar v. Allen-West Commission Co., 78 Miss. 274-7, 28 So. 786; Jones v. City of Amory, 184 Miss. 161, 185 So. 237; Mid-South Paving Co. v. State Highway Comm., supra; Smith v. Doehler Metal Furniture Co., 195 Miss. 538, 15 So.2d 421; Secs. 2783, 9014-16, Code 1942.
Clay B. Tucker, Woodville, for appellant Walker Construction Company.
I. The obligation existing between the Walker Construction Company and the Town of Gloster, Mississippi, is not such an indebtedness as is contemplated by Section 2729, Mississippi Code of 1942, as no indebtedness at the time suit was filed is shown to be presently due by the Town of Gloster to Walker Construction Company. Craig v. Gaddis, 171 Miss. 379, 157 So. 684; Ford v. Mutual Life Ins. Co., 194 Miss. 59, 13 So.2d 45; Travelers' Ins. Co. v. Inman, 157 Miss. 810, 126 So. 399.
II. The Walker Construction Company had no right of action against the Town of Gloster for any amount due under its contract, at the time the bills of complaint were filed, since the contract provided only for payment to be made when the engineer has certified to the Town of Gloster that all the work has been completed, and that payment is due therefor. Craig v. Gaddis, supra; Ford v. Mutual Life Ins. Co., 194 Miss. 519, 13 So.2d 45; Mid-South Paving Co. v. State Highway Comm., 197 Miss. 751, 22 So.2d 497; Travelers' Ins. Co. v. Inman, supra.
III. The Town of Gloster, a municipal corporation operating as a Code Chapter Municipality of the State of Mississippi, is not a person within the meaning of Section 2729, Mississippi Code of 1942. City of Jackson v. State, 156 Miss. 306, 126 So. 2; Dollman v. Moore, 70 Miss. 267, 12 So. 23.
IV. The Town of Gloster having objected to being made a defendant in these suits, as it legally has the right to do, no resident defendant remains to enable the complainants to proceed with its suit in attachment. Clark v. Louisville N.R.R. Co., 158 Miss. 287, 130 So. 302; Ford v. Mutual Life Ins. Co., supra; Gulf Refining Co. v. Mauney, 191 Miss. 526, 3 So.2d 844; Ragsdale v. Moore (Miss.), 24 So.2d 332.
V. The Roy M. Mitchell Contracting Company should not have been granted thirty days to amend bill by Lower Court, after sustaining general demurrer. Gulfport Cotton Oil, Fertilizer Mfg. Co. v. Reneau, 94 Miss. 904, 48 So. 292, 136 Am. St. 607; Poole v. Johns-Manville Products Corp., 210 Miss. 528, 49 So.2d 891; Wade v. Long, 168 Miss. 434, 151 So. 564; Wenger v. First Natl. Bank, 174 Miss. 311, 164 So. 229; Wray v. Cox, 86 Miss. 638, 38 So. 418; Sec. 264(a), Code 1942.
VI. The Walker Construction Company, a municipal contractor for public work, and St. Paul-Mercury Indemnity Company, surety on its performance bond, could not be sued until six months from completion of contract and final settlement thereon. Kershaw, Inc. v. State Use of Day, 176 Miss. 757, 169 So. 690; U.S. Fidelity Guaranty Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529; Secs. 9014-19, Code 1942.
Gordon Gordon, Liberty; James G. Anders, Jr., Gloster, for appellees.
I. There is no merit to the argument of the appellant, Walker Construction Company, that no funds would be due until the completion of the contract for the contract incorporates the plans and specifications and makes them a part of the contract, and the plans and specifications provided for the payment on monthly estimates certified to by the engineers, and the testimony of Mr. Adams shows that he had a certificate of the engineers showing that the Town was presently indebted to the Walker Construction Company in the sum of $9,522.63. Travelers' Ins. Co. v. Inman, 157 Miss. 810, 126 So. 399; Sec. 2801, Code 1942.
II. The appellant, Walker Construction Company, in its brief gets off on an argument about retainage which we admit was not due until the contract was completed, but the money was due under the terms of the contract for the work performed during the month of November at the time that the bill of complaint was filed, or ninety per cent of said amount was due. 17 C.J.S., Sec. 502(c) p. 1057.
III. The argument of appellant, Walker Construction Company, that the Town of Gloster is not a person as contemplated by Section 2729 of the Code of 1942, has no merit whatsoever and does not even admit of argument. Section 689 of the Code of 1942 states that when the term person when used in any statute shall apply to artificial as well as natural persons and when used to designate the party whose property may be the subject of offense shall include the United States * * * town or village which may lawfully own property in this State; also all public and private corporations as well as individuals. Further, looking at Section 2783 of the Code of 1942, being the Garnishment Statute, the Legislature used the words, "that any person either natural or artificial including * * * municipality * * *." The very case of City of Jackson v. State, cited by appellant, Walker Construction Company, quotes Section 689 of the Code of 1942 in holding in that case that the City of Jackson was such a person as contemplated by the statute.
IV. In answer to the point of appellant, Walker Construction Company, that the Town of Gloster having objected to being made a defendant in these suits, as it legally has the right to do, no resident defendant remains to enable the complainants to proceed with its suit in attachment, we refer the Court to Point VI of this brief, in which the right to garnish and attach the funds in the hands of the Town of Gloster is discussed. We submit that unless there were effects in the hands of a resident defendant that the attachment would not lie nor would the same be necessary where nothing could be subjected to the demand of the appellees. This in itself, however, would not dismiss this suit for personal service was had on one of the partners of the contract and even if the Court should hold that the garnishment against the appellant, Town of Gloster, was invalid we think that we would still be entitled to proceed to a judgment against the contractor.
V. The Lower Court committed no error in allowing appellee, Roy M. Mitchell Contracting Company, thirty days in which to amend its bill after sustaining demurrer of appellant, Walker Construction Company, on the grounds of (1) the bill states no cause of action against it, and (2) that exhibit "A" sued on is in violation of the statutes of frauds of the State of Mississippi, and particularly Section 264(a) of the Code of 1942.
VI. In answer to the point of appellant, Town of Gloster, that writ of garnishment is not applicable under attachments in chancery against a municipality. Aldridge v. First Natl. Bank of Birmingham, 165 Miss. 1, 144 So. 469; Craig v. Gaddis, 171 Miss. 379, 157 So. 684; Gulf Refining Co. v. Mauney, 191 Miss. 526, 3 So.2d 844; Mid-South Paving Co. v. Trinidad Asphalt Mfg. Co., 197 Miss. 751, 21 So.2d 646; Secs. 2729-30, 2788, Code 1942; Chap. 321, Laws 1936; Griffith's Miss. Chancery Practice (2d Ed.) Sec. 484 p. 491.
VII. In answer to the point of appellant, Town of Gloster, that the objection of the municipality of the Town of Gloster to being subjected to the attachment in chancery and to the jurisdiction of the Court should be sustained. Dollman v. Moore, 70 Miss. 267, 12 So. 23; Sec. 9014, Code 1942.
APPELLANTS IN REPLY.
I. Section 2783 of the Code of 1942 is not applicable here because there is no judgment creditor a party, then a municipality is not subject to an attachment in chancery over its objection. Addyston Pipe Steele Co. v. City of Chicago, 170 Ill. 580, 48 N.E. 976, 44 L.R.A. 405; Clarksdale Compress Co. v. Caldwell Co., 80 Miss. 343, 31 So. 790; Dollar v. Allen-West Commission Co., 78 Miss. 274, 28 So. 876; Dollman v. Moore, 70 Miss. 267, 12 So. 23; Hawthorne v. City of St. Louis, 11 Mo. 59, 47 Am. Dec. 141; Hightower v. Slaton, 54 Ga. 108, 21 Am. Rep. 273; Leake v. Lacey, 95 Ga. 747, 22 S.E. 655, 51 Am. St. 112; State v. Tyler, 14 Wn. 495, 45 P. 31, 37 L.R.A. 207, 53 Am. St. 878.
II. Chapter 321 of the Laws of 1936, (now Section 2783, Mississippi Code of 1942) is not applicable here.
III. The unidentified plans and specifications, copies of which were not made exhibit to the bills, and which are not a part of this record here, should not be considered by the Court.
IV. Section 1469, Code of 1942, which applies to Chancery Courts as well as Circuit Courts, as this Court has held in Paine v. Newton, 186 Miss. 844, 192 So. 310, requires a copy of the account or writing upon which action is founded to be filed with declaration. This is also supported by Sections 190, 191, and 192, Griffith's Mississippi Chancery Practice, Second Edition.
V. The bills do not contain any allegations setting forth the substance of the contract, made Exhibit "A", such as the manner and time of payments, or the performance bond, made Exhibit "B", such as what payments are guaranteed thereunder, and contains no allegations whatever, what any plans and specifications exist, all of which is required by the statute, when the case is founded on any writing; and yet, the appellees in their brief, base or found their entire case on some terms of some plans and specifications unidentified and unconnected with this case as far as any pleadings or exhibits or this record show, to amend a solemnly executed written contract and solemnly executed bond between the appellants here.
VI. The contract by and between Walker Construction Company and the Town of Gloster not providing for partial, progress, installment or monthly payments, the full contract price of $109,152.30 becomes retainable as this Court held in Davis Co., Inc. v. D'Lo Guaranty Bank, 162 Miss. 829, 138 So. 822.
VII. The above being true, the amount due Walker Construction Company by the Town of Gloster on the completion of its contract, was all retainage and could not be reached by an attachment in chancery before the contract was completed and final settlement had thereon, as held by this Court in Mid-South Paving Co. v. State Highway Commission, 197 Miss. 751, 20 So.2d 834, at page 781.
VIII. This Court should reverse the Lower Court and sustain the objection of the Town of Gloster, while acting in its public capacity, to the jurisdiction of the Court and to being subjected to the attachment in chancery of its public funds, and dismiss the bills as to the Town of Gloster.
IX. This Court should reverse the Lower Court, and sustain motion of Walker Construction Company to quash the attachment in chancery and to dismiss the bills insofar as they effect the attachments in chancery.
ON CROSS-APPEAL.
Gordon Gordon, James G. Anders, Jr.,
I. The Court erred in sustaining the demurrer of St. Paul-Mercury Indemnity Company to the bill of complaint of J.E. "Scooter" Tyler and James L. Forman, d/b/a Forman's Auto Service. Columbian Iron Works v. Town of Decatur, 172 Miss. 68, 159 So. 97; Marion County v. Foxworth, 83 Miss. 677, 36 So. 36; National Surety Co. v. Hall-Miller Decorating Co., 104 Miss. 626, 61 So. 700; Oliver Constr. Co. v. Crawford, 142 Miss. 490, 107 So. 877; U.S. Fidelity Guaranty Co. v. Yazoo County, 145 Miss. 378, 110 So. 780; Watkins v. U.S.F. G. Co., 138 Miss. 388, 103 So. 224; W.T. Rawleigh Co. v. Brown, 143 Miss. 895, 108 So. 720; Secs. 9014-16, Code 1942; Griffith's Miss. Chancery Practice (2d ed.), Sec. 24 p. 26.
II. The Court erred in sustaining the demurrer of the St. Paul-Mercury Indemnity Company to the bill of complaint of Roy M. Mitchell Contracting Co., Inc.
III. The Court erred in sustaining the demurrer of Walker Construction Company to the bill of complaint of Roy M. Mitchell Contracting Co., Inc. Arkansas Fuel Oil Co. v. Trinidad Asphalt Mfg. Co., 189 Miss. 366, 198 So. 41; Feed Milling Co. v. U.S.F. G. Co., 145 Miss. 599, 111 So. 94; Oliver Constr. Co. v. Dancy, 137 Miss. 474, 102 So. 568; Stowell v. Clark, 152 Miss. 32, 118 So. 370.
Clay B. Tucker, Woodville, for appellants and cross-appellees.
I. In reply to cross-appellants' Points I, II, and III. Day v. Royce Kershaw, Inc., 185 Miss. 207, 187 So. 221; Kershaw, Inc. v. State Use of Day, 176 Miss. 757, 169 So. 690; U.S. Fidelity Guaranty Co. v. Plumbing Wholesale Co., 175 Miss. 675, 166 So. 529; Secs. 9014-17, Code 1942; Chap. 217, Laws 1918.
This is an attachment suit in chancery under Section 2729, Code of 1942, wherein the appellant Walker Construction Company, a partnership composed of N.A. Walker and R.D. Moore, nonresident of the State, and the surety Saint Paul-Mercury Indemnity Company, on the performance bond of the Walker Construction Company, were the principal defendants. The suit was begun by the Construction Machinery Corporation, a nonresident of the State, wherein it was sought to recover of the appellant Walker Construction Company, and its surety on the performance bond, the sum of $2,374.54, alleged to be due as rental of certain equipment used by the nonresident defendant Walker Construction Company in the construction of a sanitary sewerage system for the Town of Gloster, a municipal corporation in Amite County, Mississippi. Two or three different grounds were alleged to sustain the equity jurisdiction of the chancery court wherein the suit was brought, but if the Town of Gloster, which was alleged to be indebted to, or to have the effects of, the nonresident defendant in its hands due or belonging to the nonresident contractor, Walker Construction Company, such fact would in itself be sufficient to have conferred jurisdiction on the chancery court provided the said municipal corporation was subject to be made a defendant, as garnishee, in the attachment in chancery suit, without the consent of the said municipal resident defendant.
The Town of Gloster filed a written objection to the attachment suit with the right of garnishment against it as a resident defendant, but this objection was overruled by the trial court.
Two other alleged creditors of the appellant Walker Construction Company petitioned for and were granted leave to intervene to assert their claims for money claimed to be due for the rental of other equipment for use on the construction job, they being J.E. (Scooter) Tyler and Roy M. Mitchell Contracting Company, Inc., both nonresidents of the State of Mississippi. Likewise, James L. Foreman, doing business as Foreman's Auto Service, a local resident, petitioned for and obtained leave to intervene to assert his claim for money alleged to be due for certain parts furnished and labor performed in the repair of machinery alleged to have been used by the nonresident contractor, Walker Construction Company, in connection with the construction of said sanitary sewerage system.
As a matter of precaution, the complainants had writs of attachment issued against the contractor, and filed suggestions for writs of garnishment against the Town of Gloster, and caused such writs to be issued and served, as in the case of an attachment at law, but without alleging that the contractor owned land and tenements within this State. The writs of attachment against the contractor provided for levying upon the property of the nonresident contractor, both real and personal, but since the contractor was not alleged to own lands and tenements within this State, its personal property was not subject to attachment without the giving of a bond as if the same were attachments at law, unless such nonresident defendant owned personal property in the possession of a resident defendant.
It is immaterial whether or not the Town of Gloster was presently indebted to, or had effects of, the nonresident defendant, if the said municipality was not subject to attachment and garnishment without its consent, and where such consent had not been obtained.
Personal service of process was had on R.D. Moore, individually, and as one of the partners in the Walker Construction Company, the same having been served on December 10, 1953, the date of the filing of the original suit by the complainant, Construction Machinery Corporation. Process by publication was had on the other resident defendant, N.A. Walker. Lawful process was also had upon the contractor's surety, Saint Paul-Mercury Indemnity Company, so as to subject it to the jurisdiction of the court for the rendition of a judgment against it in personam, provided the suit was not premature as to such surety, and if it were liable for the claim sued on.
(Hn 1) However, the appellant Walker Construction Company filed motions to quash the attachment against it and to vacate the garnishments against the Town of Gloster, on the grounds that neither of the said defendants were subject to the attachments and garnishments. Upon these motions being overruled, the appellant Walker Construction Company filed answers to the several bills of complaint of the original complainant, Construction Machinery Corporation and of the intervenors. The said appellant thereby entered its appearance and subjected itself to the jurisdiction of the court for a rendition of decrees in personam against it in favor of the several complainants, provided upon a hearing of the case on its merits the said appellant contractor is shown to be liable for the claim sued on.
(Hn 2) The surety, Saint Paul-Mercury Indemnity Company, interposed as demurrer to each of the bills of complaint on the grounds, First, that it was not liable under the terms of its bond, made Exhibit B to the bill of complaint, for money due as rental on equipment; Second, that the construction contract, the performance of which it had become a surety, had not been completely performed at the time of the institution of the original suits and the filing of the bills of the intervenors; and, Third, that the six months had not elapsed within which the obligee in the bond, Town of Gloster, had the first right to sue the surety on the bond. This demurrer was sustained without prejudice, under and by virtue of Sections 9014, 9015 and 9016, Code of 1942. These demurrers were properly sustained on the ground that the suit had been prematurely brought, and as to the first ground of the demurrer, see McElrath and Rogers v. W.G. Kimmons Sons, 146 Miss. 775, 112 So. 164, 680, on the question of whether a contractor's bond for public work covers only material and labor consumable in the work, and not that necessary for the contractor to have in order to perform the work.
(Hn 3) We are of the opinion that the objections filed in the several cases by the Town of Gloster to being made a defendant in an attachment suit in chancery, as garnishee, is controlled by the decision of this Court in the case of Dollman, et al. v. J.C. Moore, 70 Miss. 267, 12 So. 23, in favor of the contention of the said municipality. Moreover, it is conceded by the complainants in their brief that except for Chapter 321, Laws 1936, (Section 2783, Code of 1942), the rule announced in Dollman v. Moore, supra, and other decisions following that case prior to the enactment of said Chapter 321, Laws 1936 (Section 2783, Code of 1942), would render the Town of Gloster not subject to attachment in chancery, as a garnishee, in this case. However, in our opinion, the rule announced in Dollman v. Moore, supra, as followed in subsequent cases, is still the law in this State except in cases where a complainant in attachment and garnishment proceedings is a judgment creditor. The Code section here invoked as to those governmental bodies engaged in the performance of governmental functions reads as follows:
"Section 2783. When issued on judgment or decree. — On the suggestion in writing by the plaintiff in a judgment or decree in any court upon which an execution may be issued, that any person, either natural or artificial including the State, any county, municipality, school district, board or other political sub-division thereof, is indebted to the defendant therein, or has effects or property of the defendant in his, her or its possession, or knows of some other person who is indebted to the defendant, or who has effects or property of the defendant in his, her or its possession, it shall be the duty of the clerk of such court, or of a justice of the peace in a case before him to issue a writ of garnishment, directed to the sheriff or proper officer, commanding him to summon such person, the State, county, municipality, school district, board or other political sub-division thereof, as the case may be, as garnishee to appear at the term of court to which the writs of garnishment may be returnable, to answer accordingly."
We do not think that the foregoing statute is applicable to the instant case.
The original complainant, Construction Machinery Corporation, accepted a tender of $2,167.50 as made by the nonresident defendant and paid into court, as rental on the machinery of the said complainant during the period the same was used by the contractor, and the said complainant is no longer interested in the outcome of this suit. (Hn 4) A demurrer filed by the nonresident defendant, the contractor, to the original bill of the complaint of the Roy M. Mitchell Contracting Company, was sustained by the trial court and the said complainant was granted thirty days within which to amend its bill of complaint. The bill was amended and no demurrer was filed to the bill, as amended. It contains as an exhibit thereto a statement of account, which shows on its face that it was rendered to a subcontractor, and/or the Walker Construction Company for rental on a ditching machine which the bill of complaint alleges was secured by the contractor through the subcontractor and used on the construction job. It is assigned as error by the contractor that the court allowed this complainant thirty days within which to file an amended bill of complaint. We do not think that this action of the court was error. The amended bill is now pending, and the complaint of the contractor is not only to the sufficiency thereof but as to the action of the court in allowing thirty days within which the same should be filed. We pretermit any decision as to whether or not the amended bill, together with the exhibit, would violate the statute of frauds, as contended for, or whether or not the same should be made more specific as to the facts relied on to show liability of the defendant contractor for the rental sued for.
(Hn 5) The motions of the nonresident defendant to quash the attachments and garnishments should have been sustained, for the reason that the jurisdictional basis for the attachment in chancery and the garnishment against the Town of Gloster had disappeared upon the filing of objection by said municipality to being sued as a resident defendant in attachment, and as a garnishee.
(Hn 6) Section 2729, Code of 1942, under which this suit is brought, provides, among other things, that: "The court shall give a decree in personam against such nonresident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance." (Italics ours.)
Therefore the interlocutory appeals granted, both to the appellants Walker Construction Company and the Town of Gloster, to settle the controlling principles of the case, are reversed to the extent that their motions to quash the attachments and garnishments were overruled; and the interlocutory appeals granted to the appellees as to sustaining the demurrers hereinbefore mentioned will be affirmed, and the cause remanded to be proceeded with as against the contractor, if the appellees should so desire.
Some of the complainants were required to give bonds as security for costs, and finally all of the intervenors, Ross Shuffield, (who appeared to intervene without pleadings), James L. Forman, J.E. (Scooter) Tyler, and Roy M. Mitchell Contracting Company, Inc., were allowed to give a bond to cover both the costs in the trial court and in this Court, with M.C. Sterling, U.S.F. G. Company and Great American Indemnity Company, as sureties, and the said principles and sureties are to be taxed with the costs of this appeal, since the case is being reversed on the appeals taken by the Walker Construction Company and the Town of Gloster, and a judgment must be entered accordingly.
On the interlocutory appeals of the defendants the cause is reversed, and on the interlocutory appeals of the complainants the cause is affirmed, and the cause is remanded.
Hall, Kyle, Arrington and Gillespie, JJ., concur.
ON SUGGESTION OF ERROR
(Hn 7) We have concluded that the Suggestion of Error filed by the appellees herein should be overruled, but in order to make clear what was intended by the former opinion in this cause, the Court has decided that there should be added to paragraph fourteen of the former opinion, that is to say the paragraph next preceding the last two paragraphs thereof, after the words "and the cause remanded to be proceeded with as against the contractor, if the appellees should so desire," the following: and without prejudice to the rights, if any, of the appellees, as intervenors, to proceed against the Saint Paul-Mercury Indemnity Company, as surety on the performance bond of the appellant Walker Construction Company under the contract, bond and the provisions of Sections 9014, 9015 and 9016, Code of 1942, within the time provided for after the completion of the construction contract and the publication of the notice of the completion thereof, the reason for our not having remanded the cause for this purpose in the former opinion being that so far as the Court is advised any rights of the appellees to proceed against the said surety had not matured, so far as the record disclosed, when we rendered the former opinion on February 7, 1955, and it was not intended to preclude the appellees from asserting any rights that they may have against the surety whenever their right to proceed against it may accrue, if any.
Suggestion of error overruled.
McGehee, C.J., Hall, Kyle and Gillespie, JJ., concur.