Kingsley Et Al. v. City Fall River Et Al‪.‬

RUGG, C. J. A suit in equity was brought by Frank H. Kingsley against the city of Fall River, James Crosson as trustee in bankruptcy of Greany & Sherry, Inc. (hereafter called the contractor) and the Detroit Fidelity & Surety Company to recover for materials furnished to the contractor in the construction of a school building of the city, and to apply, in satisfaction of his claim, the proceeds of a bond given under G. L. c. 149, 29, by the contractor to the city as security for the payment of all materials and labor used in the construction of the school building. The surety on the bond was the Detroit Fidelity & Surety Company, hereafter called the surety. The American Hardware Company and the Republic Fire Proofing Company, Inc., were allowed to intervene in this suit as claimants, St. 1929, c. 110, to recover for materials furnished by each to the contractor in the construction of the school building. The case was referred to a master. Before hearing, the claim of Frank H. Kingsley, the original plaintiff, was settled. The master filed a report in favor of the American Hardware Company and disallowed the claim of the Republic Fire Proofing Company, Inc. Separate interlocutory decrees were entered confirming the masters report as to each intervenor. No appeal was taken by the Republic Fire Proofing Company, Inc. The surety appealed as to the American Hardware Company who, as intervenor, is now the only party prosecuting the case against the surety, and will be hereafter termed the intervenor. There was entered under date of October 17, 1930, a decree of the tenor following: Frank H. Kingsley vs. City of Fall River, et al. Final Decree. This case came on to be heard at this sitting upon the report of the master and was argued and it appearing that the report of the master has been duly confirmed and it appearing that the defendant, Detroit Fidelity & Surety Company is indebted to the plaintiff, American Hardware Company, on the contract of said plaintiff with the City of Fall River, and it appearing that said defendant Surety Company has failed to pay to the said plaintiff the amount thereof in accordance with the terms of its bond of indemnity to said City of Fall River, it is hereby ordered, adJudged and decreed that the said defendant Detroit Fidelity & Surety Company is indebted to the plaintiff American Hardware Company in the sum of $3,658.29 together with interest from November 5th, 1929 in the sum of $231 and costs in the sum of $17.50 and that an execution is ordered to issue therefor. On the reverse of the decree was the following: Frank E. Kingsley, et al vs. City of Fall River, et al. Final Decree as to claim of American Hardware Co. Filed & Entered -- Oct. 17, 1930. Prior to the entry of this decree there had been no interlocutory decree as to the city and the contractor, other parties defendant. The surety seasonably filed an appeal from this decree designating it therein the final decree. It did not enter the appeal as required by the statute and on March 17, 1931, an order was entered to the effect that the appeal be dismissed. Decree in conformity to that order was entered on January 12, 1932. In the following February execution issued against the surety which has not been satisfied. Thereafter the surety filed a motion that the execution be returned to court upon the ground that it was improperly issued, and another motion that the decree of October 17, 1930, be stricken out and expunged upon the ground that although styled final decree it is not in fact a final decree. Upon these motions an Interlocutory Decree was entered on March 1, 1932, revoking the decree of October 17, 1930, and ordering the intervenor to return the execution into court. The validity of this decree has been reported for our determination before further proceedings.