Davidson Bros Marble Company v. United States of America ex rel Gibson

This case comes here from the circuit court of the United States for the northern district of California, on the single question of the jurisdiction of that court.

The United States, on the relation of Murray Gibson, on November 20, 1906, brought this action against Davidson Bros. Marble Company, a corporation organized under the laws of the state of Illinois, and therefore, for jurisdictional purposes, a citizen of that state, and Samuel A. Tolman and John A. Tolman, citizens and residents of that state. Neither of the defendants was alleged to be an inhabitant of the district. The complaint set forth in substance the following cause of action: The Davidson Company on October 10, 1901, agreed, in writing, with the United States, to construct a public building in San Francisco, in the northern district of California. On October 18, 1901, the Davidson Company, as principal, and the two individual defendants as sureties, executed a bond running to the United States, conditioned that the Davidson Company should fulfil its contract with the United States and make payment to all persons supplying the Davidson Company with labor or materials in the prosecution of the work. Under a contract made on July 25, 1902, Gibson furnished to the Davidson Company certain labor and materials used in the prosecution of the work, for which a large sum is due and unpaid. No suit was brought by United States within six months after the completion of Davidson Company's contract with the United States, and thereafter Gibson applied to the Treasury Department, and furnished an affidavit that he had supplied labor and materials for which payment had not been made. Whereupon, the Department furnished him with a certified copy of the contract, and subsequently this action was begun. A writ of summons was issued to the defendants, and served upon them personally in Illinois. Notice of the pendency of the suit was also given by publication. On January 9, 1907, the defendants appeared specially and filed a demurrer and a motion to quash service and to dismiss, which were, respectively, as follows:

Demurrer.

The defendants. . . demur to the complaint of the plaintiff herein upon the following grounds:

First. That the court has no jurisdiction of the defendants or either of them.

Second. That the plaintiff is not a resident or citizen of the northern district of California in the ninth judicial circuit or of the state of California.

Third. That the defendants are not nor is either of them a resident or citizen of the northern district of California in the ninth judicial circuit or of the state of California.

Fourth. That, at the time of the commencement of this action, the plaintiff, Murray Gibson, trading as John Gibson, was and now is a citizen and resident of the state of Pennsylvania, and that, at the time of the commencement of this action, the defendants were, and each of them was, and now is, a citizen and resident of the state of Illinois.

Fifth. That this court has no jurisdiction of the subject of the action.

Sixth. That this court has no jurisdiction of the controversy alleged in the complaint.

Wherefore the defendants pray to be hence dismissed with their cost.

Motion to quash.

The defendants above named and each of them hereby appear specially in the aboveentitled cause for the purpose only of moving the said court to quash and set aside the service of the summons in the said cause, and to dismiss the said action upon the ground that the said court has no jurisdiction of the persons of the defendants, and upon the further ground that the said court has no jurisdiction of the person of the plaintiff, and upon the further ground that neither the plaintiff nor the defendants or any or either of them are citizens of the state of California or residents of the northern district of California in the ninth judicial circuit, and upon the further ground that the said court has no jurisdiction of the controversy at issue. The said motion will be based upon the complaint of the plaintiff, and all subsequent proceedings and the return of service of said summons herein.

The motion to quash was denied and the demurrer was overruled. The defendants declined to plead further, a judgment was entered against them for the amount claimed in the complaint, and thereupon the defendants, by writ of error, brought the question of jurisdiction directly to this court.

The law in force at the time the contract with the United States, the bond given to the United States, and the contract with Gibson were made, is the act of August 13, 1894 (28 Stat. at L. 278, chap. 280, U.S.C.omp. Stat. 1901, p. 2523), which is as follows:

'That hereafter any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, or for repairs upon any public building or public work, shall be required, before commencing such work, to execute the usual penal bond, with good and sufficient sureties, with the additional obligations that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract; and any person or persons making application therefor, and furnishing affidavit to the Department under the direction of which said work is being, or has been, prosecuted, that labor or materials for the prosecution of such work has been supplied by him or them, and payment for which has not been made, shall be furnished with a certified copy of said contract and bond, upon which said person or persons supplying such labor and materials shall have a right of action, and shall be authorized to bring suit in the name of the United States for his or their use and benefit against said contractor and sureties, and to prosecute the same to final judgment and execution: Provided, That such action and its prosecutions shall involve the United States in no expense.

'Sec. 2. Provided that in such case the court in which such action is brought is authorized to require proper security for costs in case judgment is for the defendant.'

Mr. Edwin M. Ashcraft for plaintiffs in error.

Messrs. Robcrt T. Devlin and Henry P. Brown for defendant in error.

Statement by Mr. Justice Moody:  Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court: