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RAYMOND BRELAND v. SMITH-JOHNSON

JANUARY 21, 1987

RAYMOND BRELAND
v.
SMITH-JOHNSON, INC., KING-SMITH, INC.; W. E. SMITH; AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND



BEFORE HAWKINS, P.J.; ROBERTSON AND SULLIVAN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

This case presents a narrow but not insignificant procedural question concerning intervention practice under Rule 5, not Rule 24, Mississippi Rules of Civil Procedure. Once a trial court has appropriately entered an order granting a motion for leave to intervene, by what procedure must the intervenor serve his pleading upon the other parties to the

action?

 The question arises in the context of a suit against a contractor in default on a project for construction of a portion of U.S. Highway 78 in DeSoto and Marshall Counties. The contractor - actually three parties: Smith-Johnson, Inc., King-Smith, Inc., and W. E. Smith (hereinafter collectively" Contractor ") - had, of course, executed the mandatory public works contract bond, with Fidelity and Deposit Company of Maryland (hereinafter" F&D "or" surety ") as surety, all in connection with a July 10, 1978, highway construction contract.

 Today's intervenor is an unpaid materialman, Raymond Breland, who alleges that he had an agreement with Contractor to furnish ready-mix concrete for use in the project. Breland alleges that he was not paid by Contractor and that he has subsequently obtained a judgment against Contractor in the amount of $79,471.13 in the United States District Court for the Northern District of Mississippi. That judgment was affirmed long ago and is now final. Breland v. King-Smith, Inc., 734 F.2d 1477 (5th Cir. 1984).

 The present action began on June 23, 1983, when another of Contractor's creditors, Crump-Nashville, Inc., filed suit in the Circuit Court of Marshall County, Mississippi, against Contractor and F&D, its surety. Crump-Nashville, Inc. alleged that it had furnished insurance for a subcontractor on the Highway 78 project, that the premiums had not been paid, and that Contractor and F&D were jointly and severally liable.

 On August 15, 1983, Breland appeared and filed his motion to intervene. *fn1 Breland sought leave, upon intervention, to seek, inter alia, enforcement of its federal court judgment. All parties concede that Breland had a right to intervene. Miss. Code Ann. 31-5-9 (1972) *fn2; Rule 24(a)(1), Miss. R. Civ. P. Immediately thereafter, the Circuit Court entered its order granting the motion for leave to intervene. Subsequently, again on August 15, 1983, Breland filed his complaint in intervention and served a copy of same upon counsel of record for Contractor.

 On January 13, 1984, Contractor and surety filed a motion to dismiss Breland's complaint in intervention alleging, among other grounds, that Breland had failed to" perfect "his complaint against Contractor within a one year period from date of final acceptance of the contract by the State of Mississippi as required by Miss. Code Ann. 31-5-7 (1972). The alleged" imperfection "in the complaint in intervention is that Breland failed to perfect service upon Contractor and

 surety within the one year period of time via issuance of new process. See Rule 4, Miss. R. Civ. P. *fn3

 On November 14, 1984, the Circuit Court entered its order dismissing Breland's complaint in intervention. Although the order is silent regarding the reasons for the dismissal, a collective reading of the briefs of the parties makes it clear that the Circuit Court's action was predicated upon Breland's failure to have new Rule 4 process issue for Contractor, rather than merely serving a copy of the complaint for intervention upon Contractor's counsel. See Rule 5(b), Miss. R. Civ. P.

 This appeal turns upon construction and application of the provisions of Rule 5, Miss. R. Civ. P., for once the order was entered allowing Breland to file his complaint in intervention, the force of Rule 24 was spent. Rule 5(a), in pertinent part, provides:

 Except as otherwise provided in these rules, . . ., every pleading subsequent to the original complaint . . . shall be served upon each of the parties.

 Breland's complaint in intervention is a pleading subsequent to Crump-Nashville, Inc.'s original complaint and, therefore, was subject to the service requirement of Rule 5(a). No other provision of the rules provides to the contrary.

 Rule 5(b) then prescribes the method by which service may be made of those papers required to be served under Rule 5(a). Rule ...


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