
    Atkinson et al., Partners, d. b. a. Atkinson & Betts, v. Orr-Ault Construction Co. et al.
    (No. 22443
    Decided March 18, 1931;
    reheard and decided June 17, 1931.)
    
      
      Messrs. Lynch & Sawyers and Mr. T. J. Kremer, for plaintiffs in error.
    
      Messrs. Thornburg & Lewis, for defendant in error the Maryland Casualty Company.
   By the Court.

This matter was submitted at an earlier date of this term, and a rehearing having been granted, and reargument had, the court has reached the conclusion that Section 2365-3, General Code, requiring one performing labor or furnishing material in the construction, erection, alteration or repair of a building, work or improvement, under contracts referred to in such section, to furnish the sureties on the bond of the principal contractor a statement of the amount due such person, firm or corporation before suit may be brought upon such bond, is jurisdictional in character. In this case, it being conceded that no such statement was furnished, the demurrers to the petition for failure to so show were rightly sustained by the courts below.

The judgment of the Court of Appeals in affirming the judgment of the court of common pleas is therefore affirmed.

Judgment affirmed.

Marshall, C. J., Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.  