Walsh

(after stating the facts as above).

It is alleged in the complaint, with reference to the Gomez Case, “that the said McLean & Walsh, by their attorneys, assumed .tthe control and-direction of the trial of said cause; that the plaintiff herein advised tho said McLean & Walsh and tho court, before the trial of said cause, that the town of Flagstaff held an indemnity bond from the said McLean & Walsh as against any damages that might be recovered against said town in said cause-, and that the town of Flagstaff desired only to protect the rights of the indemnitors; that said trial was conducted on behalf of the defendants in said cause by tho attorneys for said McLean <& Walsh.”

The allegations fall short of a charge of negligence on the part of the contractors and their attorneys in failing to file a bond on appeal o-n behalf of the town. It is nowhere alleged that the town directed or authorized tho contractors to appeal o-n behalf of the town or that tho town arranged for a surety on an appeal bo-nd and notified the contractors or their counsel to prepare and file the bond. This action is plainly brought on tho contract of May 10, 1919, and the bond- o-f United States Fidelity &…