James v. Davidson

LyoN, Ci J. This is a controversy between plaintiff and the appellants, each of whom is a creditor and subcontractor of the defendant Russell, for money alleged to be due Russell from the county of Richland. The money claimed is the unexpended balance of the reserve fund remaining after the county shall have paid out of such fund the cost of completing the building, incurred after Russell threw up his [324] contract to erect the same. The appellants intervened in the action for the purpose of contesting the right of plaintiff to any portion of such money. This practice is authorized in Hawes v. Clement, 64 Wis. 152. 1. The first and chief objection urged to a recovery in the action against the county is that when the same was commenced nothing was due from the county to Russell. It is claimed that the action cannot be maintained against the county until there is something due the' principal contractor from the county. We are inclined to think the proper construction of sec. 3328, R. S., under which the action was brought, is that no action can be maintained under it against the county until there is something actually due the principal contractor from the county. Such seems to be the plain reading of the statute. We are further of the opinion that nothing was due from the county to Russell when this action was commenced, for the reason that Russell had then received the full eighty per cent, of the contract price for all he had done under the contract, which was all he was then entitled to. He had no claim on the reserve fund until the building was completed. But the circuit court has adjudged, in effect, that there was an indebtedness due Russell from the county when this action was commenced. The county has not appealed therefrom, and seems satisfied therewith. We hardly think that the appellants are in a position to attack the judgment in this respect, for the reason that, if the plaintiff is defeated because there was nothing due Russell from the county when this action was commenced, the ruling would' defeat the appellants’ actions, for those actions were also commenced before the building was completed and, by the same rule, before Russell was entitled to any portion of the reserve fund. Considering, therefore, that the appellants would gain nothing by a reversal of this judgment, but rather that they would thereby lose their actions against the [325] county, we conclude they cannot be heard to attack the judgment because nothing was actually due Russell from the county when the action was commenced. 2. It is also maintained by counsel for appellants that the finding fixing the balance of the reserve fund at $1,784 is erroneous, in that the amount thus fixed does not include moneys paid by the county to Russell out of the reserve fund between December 2, 1889, and January 14, 1890, claimed (erroneously, however) to be over $2,000. Such payment was made before either appellant commenced an action, and they cannot be heard to object thereto, it not being claimed that the payment was- fraudulently made. 3. A question of the allowance of interest on plaintiff’s claim was made in the argument. But, inasmuch as no interest thereon is included in the judgment, the question is of no importance. 4. These actions, under sec. 3328, R. S., are the equivalents of garnishee actions brought by the same creditors of Russell against the county. Klaus v. Green Bay, 34 Wis. 628. The commencement of each such action gave the plaintiff therein priority over subcontractors and creditors of Russell who commenced their actions later. This plaintiff, being the first to bring an action, is entitled to be first paid out of the moneys adjudged to have been due Russell from the county when the action was commenced. By the Court.— The judgment of the circuit court is affirmed.