United States Fidelity & Guaranty Co. v. Mobley

*516 Holden, P. J., delivered the opinion of the court. The appellee, H. M. Mobley, brought this suit in the chancery court of Perry county ag’ainst W. DL Mobley, J. R. S. Edwards, and the appellant, the United States Fidelity & Guaranty Company, surety on the bond of Mobley and Edwards, who had contracted for the construction of a road in Jefferson county, Miss. The claim of appellee, Mobley, was for labor and material furnished by him in the construction of the road, and for which the contractors and their surety were due him one thousand nine hundred seventeen dollars and sixty-five cents. Upon a hearing before the chancellor on the merits, a recovery in favor of Mobley was allowed against the appellant surety company, from which decree this appeal is prosecuted. The suit is based upon chapter 217, Laws of 1918, which provides for a bond to be executed by the contractor who undertakes to construct any public work, which bond obligates that such contractor or his surety shall pay all persons supplying labor or material therefor, and that any person who has furnished labor or materials shall have the right to sue- upon the bond for any amount remaining due and unpaid to such person for labor or materials furnished in the construction of the work. Section 4 of the chapter provides tfiat — -“When suit is so *517 instituted by any person only one action shall be brought and any person entitled to sue may upon application intervene and may be made a party to said suit,” etc. Section-6 of the chapter provides that — “In all suits instituted under the provisions of this act, notice of the pendency of such suits shall be made by publication in some newspaper of general circulation published in the county or town where the contract is being performed, ’ ’ etc. So it will be observed that the chapter provides an express method of procedure to recover against a contractor and his surety by any person who has furnished labor or material in the construction of the work. At the trial of the case it appeared that the notice of the suit required to be published in a newspaper in the county where the work was done was not published in a newspaper in the county of Jefferson where the road was constructed, but was only published in a newspaper in tue county of Perry where the cause was tried. When the fact that no notice had been published in the county where the road was constructed was called to the attention of the court, it was urged that no decree could be rendered in the proceeding until such publication was- made as required by section 6 of the said chapter. The court held, however, that the position was not maintainable because the fact must have been pleaded in abatement, and that, it not having been pleaded in abatement and a ruling secured thereon before entering upon the trial in chief, such defense was waived by the appellant, that the failure to publish the notice in Jefferson county should have been raised by a separate plea in abatement previous to the filing of an answer, as was re-, quired by the practice at the time this suit was filed, and that even now, under the new practice allowing abatement matters to be pleaded in the answer, it should have been distinctly pleaded therein and raised for disposition before entering upon the merits, and that the absence of such action on the part of the defendant below *518 amounted to a conclusive waiver of the defense, and could not he raised on or after the trial. It is also urged here that the point cannot be raised in this court because it was thus waived in the lower court. We are constrained to disagree with the view adopted by the chancellor in this regard. Chapter 217, Laws of 1918, provides the definite procedure to be followed in such cases, and, as 'the action is statutory, the requirements must be observed in all essential respects in order to recover thereunder. The essentials of the statute must be pleaded and proven by the plaintiff. Otoe of the essential requirements is that publication of the suit be made in the county where the work was done. It is unnecessary for us to suggest the reason why the legislature saw fit to make this provision. The required publication of the notice in Jefferson county where the road was-constructed was not made; the only notice published was in a newspaper in Perry county, where the suit was tried. The failure to follow the statute in this fundamental respect was fatal error, because no decree could be rendered in the cause without a publication of the notice in the proper county. This, notice seems to be in the nature of due process, and whether the failure to publish the notice in Jefferson county was pleaded in abatement, or called to the attention of the court in any other way, cannot be deemed a waiver, for the reason that the statute requires that there be but one suit, and that the necessary parties are to be brought in by such publication, and therefore no valid decree could be rendered under the statute unless its essential requirements are complied with by the court. We think that if the parties to be brought in by the publication of the notice of suit were merely proper parties, and not necessary parties, under the statute, then a decree without them might be valid, but where the parties are necessary, as the statute in this case *519 makes them, a decree without bringing them in cannot be upheld. . In view of these conclusions, the decree of the lower court is reversed and the case remanded. Reversed and remanded.