Ukropina-Polich-Kral v. Superior Court

PEEK, J. By prohibition, petitioners seek to prevent the Superior Court of Butte County from taking further proceedings in a civil action brought by the real party in interest, respondent Seger, against the defendants Ukropina-Polich-Kral and W. H. Darrough & Sons, a joint venture, and Maryland Casualty Company, its surety, the petitioners herein.

The facts, as disclosed by the petition, indicate that the [300]joint venture entered into a contract with the United States government to perform certain reclamation work in Butte County. As required by title 40 U.S.C.A., § 270a et seq. (formerly known as the Heard Act, but now known as the Miller Act), a payment bond was issued by the petitioner Maryland Casualty Company, for the protection of all persons furnishing work, labor, or materials to the joint venture.

Thereafter, Seger entered into a contract with the joint venture by the terms of which Seger agreed to perform a certain portion of the work. As his work progressed, Seger was compelled to alter his plans and work schedules, which he alleged increased his costs, thereby entitling him to an additional sum. He thereafter presented a claim to the joint venture. Only a small amount of his claim was paid and this suit followed. The complaint, which is in three counts, seeks a money judgment against the joint venture and against the Maryland Casualty Company as a proper charge against its payment bond.

The joint venture and Maryland Casualty Company then moved to dismiss the complaint on the ground that it came within the provisions of 40 U.S.C.A., section 270b and hence, was within the exclusive jurisdiction of the United States District Court. The trial court denied the motion and this petition for a writ of prohibition follows.

The pertinent portion of section 270b provides:

“ (a) Every person who has furnished labor or material. . . in respect of which a payment bond is furnished . . . and who has not been paid in full. . . shall have the right to sue on such payment bond for the amount, or the balance thereof, . . .

“(b) Every suit instituted under this section shall be brought in the name of the United States for the use of the person suing, in the United States District Court • for any district in which the contract was to be performed and executed and not elsewhere,...”