County of Sutter v. Superior Court

SHAW C. J.

This is a proceeding in prohibition begun originally in the district court of appeal for the third district and which, after decision by that court, was transferred to the supreme court for rehearing.

The object of the petition is to prohibit the superior court of Sacramento County from proceeding to the trial of an issue arising in an action pending in that court wherein D. J. Murphy is plaintiff and D. C. Howard, W. H. MeMorry, and E. M. Kaster are defendants, to recover money on a bond executed by the defendants to secure the per

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formance of a contract for certain public work and payment by the contractor for materials and labor furnished for and used in said work, which bond was required by the act of May 10, 1919. (Stats. 1919, p. 487.) The claim is that the superior court of Sacramento County had no jurisdiction to try the particular issue set forth in the petition.

In the year 1920 the board of supervisors of the county of Sutter executed a contract with Howard for the construction of a highway in said county. In pursuance of the act of 1919, aforesaid, Howard executed the bond required by that act, with McMorry and Kaster as sureties thereon. This act requires the contractor upon such work to give a bond with sureties for the payment by the contractor of money due from him for any materials, provisions, provender, or other supplies or teams, used in the performance of the work, and for any labor done thereon. It further provides that any person furnishing such material or performing such labor may file with the board of supervisors

“a

verified statement of such claims, together with a statement that the same have not been paid, ’ ’ that such statement may be filed any time prior to the expiration of thirty days from the completion of the work, and that, after filing such statement, such person may, within ninety days after the expiration of the first period of thirty days, begin an action on the bond for the recovery of the amount due him. The act contains some details concerning the time of filing the verified statement which we have not given, but we have stated its effect so far as the questions involved herein are concerned.