NATIONAL SURETY COMPANY OF NEW YORK, a Corporation, and Fidelity & Deposit Company of Maryland, a Corporation, Plaintiffs in Error, v. George JARVIS, Treasurer of the County of Apache, State of Arizona, for the Use and Benefit of the County of Apache, State of Arizona, Defendant in Error

NATIONAL SURETY COMPANY OF NEW YORK, a Corporation, and Fidelity & Deposit Company of Maryland, a Corporation, Plaintiffs in Error, v. George JARVIS, Treasurer of the County of Apache, State of Arizona, for the Use and Benefit of the County of Apache, State of Arizona, Defendant in Error. Circuit Court of Appeals, Ninth Circuit. June 11, 1928. No. 5423. In Error to the District Court of the United States for the District of Arizona. Henderson Stockton, Allan K. Perry, and Thomas A. Flynn, all of Phoenix, Ariz., for plaintiffs in error. Levi S. Udall, Co. Atty., and Maurice Barth, both of St. John’s, Ariz., and Isaac Barth, of Phœnix, Ariz., for defendant in error. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. [MAJORITY — DIETRICH, Circuit Judge.] DIETRICH, Circuit Judge. All substantial questions presented on this appeal were disposed of adversely to appellants’ contention by our decision in National Surety Co., et al. v. Apache County et al. (No. 5244) 22 F.(2d) 356, and we find no reason in the record for altering the conclusions there expressed. In point of technical form, possibly, the judgment is susceptible to criticism, and while we think, when construed in the light of its recitals and the findings of fact and conclusions of law, it leaves defendants in no jeopardy, to remove all possible ground for apprehension, we direct that it be amplified by the insertion, after the word “plaintiff” in each of the closing paragraphs, of the words “and his successors in office for the use and benefit of Apache county, Arizona,” and adding, after the last paragraph: “Provided that the maximum aggregate recovery from both defendants shall not exceed said sum of $22,740, with interest thereon at the rate of 6 per cent, per annum from October 24, 1927.” It will be noted that, professedly to avoid a multiplicity of actions, the appellants brought the suit No. 5244, supra, to secure a comprehensive definition and determination, binding upon all parties, of their liability upon the .several bonds herein involved. All the contentions they here plead defensively they there set up affirmatively, and were disposed of upon the merits. This appeal, therefore, amounts to nothing more than an unwarranted attempt to secure a rehearing, and for the delay thus entailed the appellee asks that we award damages, under the rule. But, in view 'of the form of the judgment, which we modify, this we deny. With the modification, the judgment is affirmed.