UNITED STATES FIDELITY AND GUARANTY COMPANY, a Corporation, Appellant,
ALFALFA SEED AND LUMBER COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Reversed and remanded, with directions.
Messrs. Forman & Gray, for Appellant.
Mr. William H. Westover, for Appellee.
[38 Ariz. 49] ROSS, J.
This suit was commenced to recover on a contractor's bond. The principal on such bond was one G. A. Hill, and the surety the United States Fidelity & Guaranty Company. The bond, joint and several in form, was given to secure the faithful performance of a contract to construct a schoolhouse for Somerton school district No. 11 of Yuma county, and to protect the school district against claims for labor and material furnished the
contractor; and, in terms, the bond ran in favor of laborers and materialmen.
The Alfalfa Seed & Lumber Company, claiming a balance of $5,485.75 due it for material furnished the contractor, sued the surety without joining as a party the principal obligor. In the complaint no reason is assigned for not making the principal obligor a party. The defendant surety company demurred to the complaint on the ground that it appeared upon the face thereof that there was a defect of parties defendant, in that the plaintiff had failed to join the principal obligor in the suit. This demurrer was overruled, and the case proceeded to trial and judgment against the surety company.
The latter appeals and assigns the court's order overruling the demurrer, and the correctness of this ruling is, we think, the only question before us. Its determination involves the construction of our statutes on the subject of joinder of parties defendant.
Section 3732, Revised Code of 1928, provides:
[38 Ariz. 50] "The assignor, indorser, guarantor and surety upon a contract, and the drawer of a bill, which has been accepted, and the drawer of a bill, which has been accepted, may be sued without the maker, acceptor or other principal obligor, when the latter reside beyond the limits of the state, or in such part of the same that they cannot be reached by the ordinary process of law, or when their residence is unknown and cannot be ascertained by the use of reasonable diligence, or be dead, or insolvent."
This section lays down a general rule to the effect that the person secondarily liable cannot be sued alone. The exception to this general rule is when the principal obligor or debtor is dead, insolvent, nonresident, etc., in which case action and judgment may go against the surety or person secondarily liable alone. The plaintiff did not plead facts to bring it within the exception, and, if the above section has not been altered, changed or repealed, the demurrer should have been sustained. Plaintiff relies, for its contention, that the surety could be sued alone, upon section 3836. Such section reads:
"All parties to a joint obligation, including negotiable paper, and partnership debts, shall be severally liable also for the full amount thereof. They may be sued thereon jointly or separately joining one or more, and judgment may be rendered in each, without barring an action against any of those not included in such judgment, or releasing any of those not sued; the court, may, however, require the plaintiff to bring in as defendants all parties jointly liable on the obligation in the action, and any subsequent judgment shall be for the amount unsatisfied."
These two sections (3732 and 3836) should be read and construed together. They were brought forward into the Revised Code of 1928 and re-enacted by the legislature at the same ...