Asbestos Manufacturing & Supply Co. v. American Bonding Co.

BURNETT, J.

The action is against appellant American Bonding Company of Baltimore as surety upon a bond given by the Lennig-Rapple Engineering Company for the doing of public work in the city and county of San Francisco. The bond was given pursuant to a statute enacted in 1897 requiring that the person seeking relief under the bond shall file with the board of public works a verified statement of his claim within thirty days from the time such work is completed, and providing, further, that suit may be filed by such claimant within ninety days after the filing of such claim. The work here was completed prior to February 26, 1912, but the claim was not filed until April 12, 1912, and the suit was begun July 18, 1912. But, while the statute in force at the time of the execution of the contract required the filing of the claim and the commencement of the action as stated above, in 1911 (Stats. 1911, p. 1422) the said act was amended and said respective periods were extended, and it is conceded by said appellant “that if the act of 1911 is operative in this case, the claim was properly filed and the suit commenced within proper time.” It is insisted, however, that “the amendatory act of 1911 should not be construed as being retroactive and the provisions of the act in force when the bond was executed should be considered the sole criterion.”

[643]

Respondent, though, calls attention to several decisions directly in point that support the view taken by the trial court. Appellant has not seen fit to notice any of these cases although it is stated that they were relied upon in the trial court. We content ourselves with specific reference to only three of those cited.

In

Bear Lake

v.

Garland,

164 U. S. 1, [41 L. Ed. 327, 17 Sup. Ct. Rep. 7], the question involved an amendment providing an extension of time for the foreclosure of a mechanic’s lien, and Mr. Justice Beckham, delivering the opinion of the court, said: “The mere enlargement of the time in which to commence the action, at least in a case where the time had not yet arrived in which to file any statement of the plaintiff’s claim for a lien, does not affect any right or remedy provided for in the old act. The right, as that term is used in the statute, consisted of the right of sale of the property in order, if necessary, to obtain payment of the money due the contractor. The remedy consisted of the taking of certain proceedings by which this sale was to be accomplished. Brior to the arrival of the time when one of these steps was to be taken an alteration of the statute by which the time to take that step might be enlarged was not an alteration of the right or of the remedy, as those terms are used in the statute, nor did it in any way affect either; it was simply an alteration of the mere procedure in the course of an employment of a remedy, the remedy itself remaining untouched or unaffected by such alteration. In this ease such an enlargement of time to commence an action was given before the time had arrived in which the action could have been commenced under the old statute.” It was therefore held that the new act applied to plaintiff’s case. Tn this instance it may likewise be said that the enlargement of the time for filing the claim and beginning the action was made before the time had arrived in which either of said steps could be taken under the old statute, and in principle the two cases are not distinguishable.