Some of the respondents herein, by leave of court, filed motions for reargument after the opinion of the court was filed. The state did not join in said motions. *Page 309
The reasons advanced in support of a reargument have received our careful consideration and no new matter appears therein sufficient to persuade us that the case should be reopened. Inasmuch as we have held the bond to be a performance bond and not a bond to pay for labor and materials, much of the argument in the motions is either repetition or not pertinent. No new reason is offered why we should consent to a reargument of this particular point which, as was said in the opinion, was decisive of the case.
The reason advanced for a reargument of the question as to who is entitled to the retained funds in the hands of the state board of public roads, namely, that the court misconceived the attitude of the state with reference to said funds, is without merit. The answer filed by the state quite clearly indicated that it was not interested in the case except as a custodian of funds which it was prepared to pay to whomsoever the court would hold was entitled thereto. This understanding of the state's attitude is consistent with its failure to either brief or argue the matter before us. The assistant attorney general appeared personally at the argument of the case and advised the court that the only interest of the state was to make certain to whom the funds in its hands should be paid. Certainly he made no argument on behalf of the respondents in regard to such payment. If the state was really not a neutral in this controversy, its attorney general could not have acted more like one, and the fact that it has not joined in these motions for reargument confirms its true status as a neutral respondent.
Motions denied and dismissed.