Contos v. Manetas — 86 Cal. App. 165

Majority

p. 165

[Civ. No. 6033.

First Appellate District, Division One.

October 18, 1927.]

JAMES CONTOS, Respondent, v. THEODORE MANETAS et al., Appellants.

p. 166

Melvin, Dingley & Stevich and Melvin & Dingley for Appellant Fidelity & Deposit Company of Maryland.

L. L. James, Jr., and Joseph Edward Connolly for Other Appellants.

Heidelberg & Murasky for Respondent.

In this action plaintiff brought suit against defendants on a claim for money due for services performed as a laborer by himself and certain colaborers who assigned their claims to him, which labor and services were performed for defendants J. Wilmshurst and Theodore Manetas in the construction of a certain highway. The defendant Fidelity & Deposit Company of Maryland, a corporation, was made a party defendant by reason of its having as surety made and executed a bond to secure payment of all claims for labor and materials, in and about the construction of such highway. Judgment was entered in favor of plaintiff and against defendant Theodore Manetas and J. Wilmshurst, individually and as co-partners, and Fidelity & Deposit Company of Maryland, a corporation, and each of such defendants for the sum of $11,402.20 and costs amounting to $28. From this judgment defendants appealed.

All of the defendants, excepting defendant Fidelity & Deposit Company of Maryland, a corporation, have filed in this court dismissals of the appeal. The dismissal of the appeal is opposed by appellant Fidelity & Deposit Company of Maryland.

It appears from affidavits on file and which are not disputed that prior to an appeal being taken Henry Heidelberg, attorney of record for plaintiff, agreed with Bradford M. Melvin, attorney of record for defendant Fidelity & Deposit Company of Maryland, that no execution would issue as against the bonding company and that no bond on appeal would be demanded from defendants and appellants, if a sufficient sum of money were deposited in lieu of such bond in the San Francisco bank, and that the sum

p. 167

of $11,869 agreed upon as a sufficient amount belonging to Wilmshurst-Manetas was so deposited.

Appellants Theodore Manetas and J. Wilmshurst, individually and as copartners, desire the appeal dismissed and the money deposited in lieu of a bond on appeal applied in satisfaction of the judgment, which appears to be sufficient in amount to hold the bonding company free from any liability, but in the event that there should for any unforeseen cause be a deficiency, counsel for respondent has stipulated here in open court on the argument of this matter to accept such sum in full of all claims and demands of any nature.

It appears, therefore, that appellant Fidelity & Deposit Company of Maryland, a corporation, will not be prejudiced by a dismissal of the appeal, and it is ordered that the same be and it is hereby dismissed.

Tyler, P. J., and Cashin, J., concurred.