페이지 이미지
PDF
ePub
[ocr errors]

ning of the six months. When the original suit was prematurely begun, an intervention is not effectual as an original suit.15 When the original suit is duly brought, an amendment which does not plead a new cause of action may be allowed.16 When the original bill was prematurely brought an amended pleading filed more than one year after the final settlement must be treated as an original suit brought too late.

When the suit is brought by the United States for its own benefit, the government is not required to serve or file notice to claimants.17

The right of intervention given by the statute must be exercised in accordance with usual practice and limitations applicable to interventions in the Federal Courts.18 The intervention must be made within a year after the final settlement. 19 An intervention by an alleged assignee who failed to prove the assignment cannot be held an intervention by the person through whom he claimed.20 But where one makes a claim in his own name on behalf of another, it seems that the name of the real party in interest may be substituted.21 Any application for intervention is made too late when delayed until after the suit has been dismissed as to contractor for improper service, and as to the surety tried and submitted.22

The provision for notice to other creditors by the creditor who began suit is directory and its omission does not deprive the court of jurisdiction nor relieve surety or contractor from liability.23 It is proper practice to obtain from the court an

15 U. S. Ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 159. 16 Ill. Surety Co. v. U. S. in the use of Peeler, 240 U. S. 214.

17 U. S. v. McGee, 171 Fed. 209. 18 See infra, §§ 258-261.

19 Ill. Surety Co. v. U. S. to the use of Peeler, 240 U. S. 214.

20 Ill. Surety Co. v. U. S. to the use of Peeler, 240 U. S. 214, 226.

21 Ibid, McDonald v. Nebraska, 101 Fed. 171, 178; 33 St. at L. 728, 729; C. H. 592, §§ 17, 19.

22 U. S. v. McGee, 171 Fed. 207. 23 U. S. for the use of Alex. Bryant Co. v. N. Y. Steamfitting

Co., 235 U. S. 327, per McKenna J. "It is urged that it is a consequence of our construction that an action may be commenced on the last day of the year and that all opportunity for intervention may be precluded, for, counsel say, 'intervention cannot be conducted in a day' and it would seem as if the act intended to afford creditors an interval of three months within which to secure an intervention.' Even if this be the consequence, some of the provisions of the act, as we have intimated, must give way. We can only select those

order stating that all laborers and material men who have not been paid may, if they are entitled to intervene in the suit, have their rights adjudicated under the provision of the Act of Congress and to serve copies of the order by mail to all known cred

which we consider the fittest to prevail to accomplish the purposes of the statute; and at the very start comes the suggestion that even if it be granted that the diligent creditor is under obligation to give notice to a waiting or tardy, or, it may be, unwilling one, how is the surety of the contractor concerned with the discharge of the obligation? At the most its concern is only to be protected against claims delayed beyond the limit of time provided by the act. We may refer again to Vermont Marble Company v. National Surety Company." 213 Fed. 429. "The

court in that case, in careful distinction between the purposes of the provisos, said that the first and second confer a substantive right of action or intervention limited only by a time for assertion, that is, one year from the completion of the work; and that that time was 'obviously for the benefit of the sureties on the bond;' while the last proviso (the third) was 'just as obviously for the benefit of the creditors alone.' It was pointed out that indeed it was to the interest of the sureties not to bring in the other creditors, and yet they contended that the provision for the notice to the creditors was mandatory and jurisdictional and not simply directory. The same contention is made in this case. In other words, it is in effect contended that a provision which is to the interest of the Surety Company not to have observed the statute gave it a right

to have observed. Such a contradiction of interests and rights we cannot assume the statute intended to create nor that it was intended to give to the Surety Company a right to have done that which it is its interest not to have performed. The provision for notice therefore is not of the essence of jurisdiction over the case, nor a condition of the liability of the Surety Company. We need not go farther in this case.

He

"In the cited case it was held that the third proviso was directory only, and the conclusion has reason to sustain it. There can be no sacrifice of rights in it, neither of surety companies nor of creditors. Every creditor has the same rights and may institute the action provided for in the first proviso. If he does not choose to do so it is his own affair; and he may guard against surprise or deception. knows the time limit of suit and of intervention. He knows that the suit must be brought in the District Court of the United States in the district where the contract was performed. It would seem as if the law owed him no further care. If he chooses he may institute proceedings if another has not done so. If another has, he knows in what court and within what time and he

may intervene. He has, therefore,

the means of suit or the means of intervention. An attentive waiting is all that is necessary for either, and indeed is his ultimate safe,

itors without any further notice.24 The newspapers in which publication is made need not be selected by the court.25 Where an order directing publication had named a year prior to its date, it was held, that this manifest error was too trivial for discussion and should be disregarded.26

It has been held, that the filing of the affidavits and obtaining of a certified copy of the bond is not a condition precedent to the right to sue.27

The United States are not necessary parties to a suit brought in their name upon such a bond.28.

The complainant should set forth the bond in full or allege that it was conditioned as required.29 When the suit is described as brought for the use of one creditor, there is no need of an averment that there are no other persons with unpaid claims against the defendants under bond.30 The statement of a claim by an intervenor need not show a failure of the government to sue.31 It has been said that the court will not permit its discontinuance until it appears that no intervenor is ready to prosecute the suit.32 The objection that the notice to other creditors has not been published may be raised by a special appearance and motion to set aside the service as well as by an answer.33 It has been held that the six months statute of limitations is a condition to the cause of action granted by the statute and consequently need not be pleaded by the defendant.34 Each successful claimant may be allowed to tax a docket fee,35 but a surety who pays into court the amount of the penalty and is discharged

[blocks in formation]

from further liability cannot be given an allowance for counsel fees out of the fund when it is insufficient to pay the creditors of the principal.36 The fund is distributed pro rata among those whose claims are allowed, including the United States.37 It has been held that the government has no right to priority.38

The Act extends to a sub-contractor of a sub-contractor.39 Contracts for the construction of a ship are included with the statute.40 The liability of the sureties is not stricti juris.41

Creditors for cartage and towage of materials to the spot where the work was performed for patterns and for making scaffolds are entitled to the benefit of the bond.42 A person, not a laborer or material man, injured by the negligence of a contractor has no remedy upon the bond, although he has a cause of action against the contractor.43 It has been held: that the United States may recover upon a bond given by a clerk in the Post Office the loss caused by his speculations to the owners of the stolen money as well as the loss to the Government; and that the Government holds the amount recovered in excess of its own loss in trust for the benefit of those thus injured.44

§ 6. Value of the matter in dispute. In general. The value of the matter in dispute in suits brought in the District Courts of the United States or removed thereto, when the jurisdiction depends upon difference of citizenship, or because the case arises under the Constitution or laws of the United States or treaties made under their authority, must ordinarily exceed, "exclusive of interest and costs, the sum or value of three thousand dollars.'1 The exceptions are stated in the preceding sec

36 U. S. v. Heaton, C. C. A., 128 Fed. 414.

37 Am. Surety Co. v. Lawrenceville Cement Co., 96 Fed. 25; U. S. v. Am. Surety Co., 126 Fed. 811.

38 Ibid. U. S. v. Heaton, C. C. A., 128 Fed. 414.

39 UT. S. ex rel. Hill V. Am. Surety Co., 200 U. S. 197; 26 Sup. Ct. 168; 50 L. ed. 437; Mankin v. U. S., 215 U. S. 533; 30 Sup. Ct. 174, 54 L. ed. 315.

40 Title Guaranty & Tr. Co. v.

Crane Co., 219 U. S. 24, 31 Sup.
Ct. 140, 55 L. ed. 72.

41 U. S. Ex rel. Hill v. Am. Surety Co., 200 U. S. 197, 26 Sup. Ct. 168, 50 L. ed. 437.

42 Title Guaranty & Trust Co. v. Crane Co., 219 U. S. 24, 34.

43 U. S., for the use of Carnegie Institute of Technology v. C. A. Riffle Co., 247 Fed. 374.

44 U. S. v. U. S. Fidelity & Guaranty Co.,, C. C. A., 247 Fed. 16. § 6. 1 Jud. Code, § 24, 36 St. at L. 1087.

tion.

This enlarges the former jurisdiction from two thousand to three thousand dollars. The statute does not apply to cases pending when it was passed. Whether it applies to causes of action that arose prior to February first, 1912, is a disputed question.4

The matter in dispute must be of such a nature as to be capable of being reduced to a pecuniary standard of value.5 Such is not the right to personal liberty. Consequently, an application for the writ of habeas corpus cannot be removed; 6 and the writ of habeas corpus cannot issue originally from a District Court of the United States, to determine the right to the custody of a child, or in any other case, when it is not authorized by statute.7 Nor the right to a divorce. It has been said: that in a suit for a divorce, where the plaintiff prays alimony charging, that the defendant is the owner of valuable real estate and property interests, and also receives a yearly income of not less than $10,000; it does not appear that the value of the matter in dispute exceeds the sum of $2,000, since it is uncertain what amount of alimony the court may allow, and the alimony is only an incident to the right to a divorce. The same rule has been applied, by a State court, upon an application to remove a suit to set aside a

2 Supra, § 5.

3 Jud. Code, § 299, 36 St. at L. 1087.

4 It has been held that it does not apply to causes of action that arose prior to February 1, 1912. Taylor v. Midland Valley R. Co., 197 Fed. 327. Contra Sloane v. Kramer Bros.

& Co., 230 Fed. 727.

5 Kurtz v. Moffitt, 115 U. S. 487, 29 L. ed. 458. See also Snow v. U. S., 118 U. S. 346, 354, 30 L. ed. 207, 209; In re Burrus, 136 U. S. 586, 593, 597, 34 L. ed. 500, 503, 514; Perrine v. Slack, 164 U. S. 452, 454, 41 L. ed. 510, 511; Whitney v. Dick, 202 U. S. 132, 50 L. ed. 963; Ex parte Evert, 1 Bond, 197; In re Barry, 42 Fed. 113; Clifford v. Williams, 131 Fed. 100. Such is not the right to compel the Secretary of State to assert a claim by the

petitioner against a foreign government. U. S. ex rel. Holzendorf v. Hay, 194 U. S. 373, 48 L. ed. 1025 (appellate jurisdiction).

6 Kurtz v. Moffitt, 115 U. S. 487, 29 L. ed. 458.

7 Clifford v. Williams, 131 Fed. 100. See In re Burrus, 136 U. S. 586, 593, 597, 34 L. ed. 500, 503, 514; Perrine v. Slack, 164 U. S. 452, 454, 41 L. ed. 510, 511; Ex parte Evert, 1 Bond, 197; In re Barry, 42 Fed. 113; also reported 136 U. S. 597, 34 L. ed. 514.

8 Johnson v. Johnson, 13 Fed. 193. The court might, however, take jurisdiction of a suit to enforce a decree awarding alimony. Barber v. Barber, 21 How. 582, 16 L. ed. 226. 9 Bowman v. Bowman, 30 Fed.

849.

« 이전계속 »