Opinion
13331
January 19, 1932.
Before FEATHERSTONE, J., Greenwood, September, 1930. Affirmed.
Action by the National Loan Exchange Bank of Greenwood against K.R. Gustafson doing business under the name of the Gustafson Construction Company, the National Surety Company, and others, in which J.E. Peurifoy as receiver of the American Bank Trust Company, filed motion to be allowed to intervene. From order granting motion, the National Surety Company appeals.
The order of Judge Featherstone, requested to be recorded, follows:
In July, 1930, the receiver of American Bank Trust Company noted before me a motion to be allowed to intervene in the above-entitled action. For various reasons the motion was postponed from time to time, and finally came up for hearing before me on this date.
The original action as above entitled was brought by the plaintiff to recover from the National Surety Company moneys which it had advanced for use in school construction to the Gustafson Construction Company on whose contract the National Surety Company was obligated.
The defendant School District No. 18 set up certain claims against the surety company, and the National Surety Company its defenses to these two claims.
The matters involved in these claims came for hearing on the merits before Judge Dennis, who filed his order on May 9, 1928, from which an appeal was taken to the Supreme Court, which order was affirmed by the Supreme Court July 11, 1930 ( 157 S.C. 221, 154 S.E., 167).
Immediately upon the publication of this decision, James E. Peurifoy, receiver of American Bank Trust Company, noted his motion to intervene in the cause, setting out that, as receiver of American Bank Trust Company, he was the holder of a note of $4,000.00 executed by the Gustafson Construction Company, which he learned by reference to the record in this cause and the exhibits introduced in evidence was protected by the bond of the National Surety Company as money used on the job, and was protected by an assignment of estimates, and that it is necessary that he be allowed to intervene in this cause by reason of the order of the Honorable Thos. S. Sease, of November 12, 1926, enjoining all claimants under this bond from proceeding in any other action.
At the hearing the verified petition for intervention by the receiver of American Bank Trust Company, his affidavit, and the printed record in the above-entitled action were introduced and exhibited to me.
From these it appears that the order of Judge Sease set out on pages 22 to 24 of the printed record provided: "That all creditors be enjoined from instituting suit or taking any legal proceedings except in this action and that the referee be authorized to issue a call for creditors, requiring them to prove their claim within ten days, by publishing the same three times in the Index-Journal."
The application by the Gustafson Construction Company to the National Surety Company, page 147, shows that the Gustafson Construction Company had arranged for a line of credit with American Bank Trust Company, which was to be secured by an assignment of estimates.
The testimony of Mr. Frank Maher, at pages 107-110, shows that the surety company knew of the borrowing from the American Bank Trust Company and its assignment of estimates.
There is no showing before me that the receiver of American Bank Trust Company, who took over in June, 1926, the assets of American Bank Trust Company, ever had his attention called to the ten days' notice published in the Greenwood Index-Journal or had any actual notice of his right to claim against the surety company.
It is urged in behalf of the surety company that, this case having gone to final judgment, intervention should not be allowed, as the Courts are not inclined to let a party come in at that late date, relying upon authorities exemplified by the text found in 21 C.J., 345.
It appears, however, to the Court that, though a strong showing must be made to justify intervention after final judgment, such a showing has been made in this case, particularly in view of the fact that to deny the petitioner the right to intervene in view of Judge Sease's order would be to prevent his having a day in Court, and in effect to hold that the ten days' notice provided by that order operated as a statute of limitations against his claim, even though he had no notice of the order.
It appears to the Court that the surety company can set up by way of answer or reply any and all defenses it may have to the claim of the receiver of American Bank Trust Company.
It is, therefore, ordered that James E. Peurifoy, as receiver of American Bank Trust Company, be and hereby is made a party to this action, with leave to file his petition or complaint setting out his claim against National Surety Company, without prejudice to the right of that company to set up any and all defenses which it may have to the petition or complaint.
It is further ordered that National Surety Company shall have twenty days in which to answer, plead, or reply to any petition or complaint filed in this action by James E. Peurifoy, receiver of American Bank Trust Company.
Messrs. Tobias Turner, for appellants, cite: All necessary parties should be included: Vol. 1, Code 1922, Sec. 365; 6 S.C. 14. Time alone will not constitute laches: 189 S.W., 847; 129 A., 805. Laches is delay that works disadvantage: 36 S.W.2d 839; 234 N.W., 823; 16 A., 873. Intervenor by leave of Court becomes as though original party: 21 C.J., 346; 221 Fed., 545. Can use evidence already taken: 247 Fed., 223. Courts discourage stale demands: 50 F.2d 123.
Messrs. D.W. Robinson and D.W. Robinson, Jr., for respondents, cite: Intervention in discretion of Court: Vol. 1, Code 1922, Secs. 361, 365; 129 S.C. 531; 125 S.E., 33; 118 S.C. 90; 110 S.E., 70; 148 S.C. 133; 145 S.E., 692. Intervention after final judgment: 129 S.C. 531; 125 S.E., 33; 126 S.C. 378; 120 S.E., 371; 148 S.C. 133; 145 S.E., 692; 128 F., 808; 279 F., 356; 247 F., 223; 299 F., 908; 46 Sou., 952; 58 S.W. 655; 96 S.E., 460; 31 N Y S., 654; 104 N.C. 350; 10 S.E., 252; 21 C.J., 346; 123 A.S.R., 294; 20 R.C.L., 685; 104 N.S., 350; 10 S.E., 252; 56 S.E., 460. No laches where failure of executive officers of defunct bank to co-operate with Receiver: 154 S.C. 267; 151 S.E., 579. Laches an equitable Statute of Limitation: 26 S.C. 179; 1 S.E., 711; 27 S.C. 188; 3 S.E., 196. In order to make out defense of laches: 43 S.C. 436; 21 S.E., 277; 138 S.C. 36; 135 S.E., 643; 140 S.C. 423; 138 S.E., 867; 157 S.C. 297; 154 S.E., 413. Equity will allow later claim if rights of Trustee not prejudiced: 123 S.C. 252; 116 S.E., 279; Vol. 1, Code 1922, Sec. 338. Policy cannot provide for limitation of action less than statutory period: 104 S.C. 167; 88 S.E., 372; 116 S.C. 29; 106 S.E., 778; 149 S.C. 407; 147 S.E., 444.
January 19, 1932. The opinion of the Court was delivered by
This case comes before this Court on appeal from an order of his Honor, Judge C.C. Featherstone, permitting the respondent, J.E. Peurifoy, as receiver of the American Bank Trust Company, to intervene in the cause and set up his alleged rights, stated in his petition. We agree with the conclusion reached by Judge Featherstone, and the said order, which will be incorporated in the report of this case, is therefore affirmed.
MESSRS. JUSTICES STABLER and BONHAM and MR. ACTING ASSOCIATE JUSTICE E.C. DENNIS, Circuit Judge, concur.
MR. CHIEF JUSTICE BLEASE disqualified.
MR. JUSTICE COTHRAN did not participate on account of illness.