76 Mo. App. 468 | Mo. Ct. App. | 1898
But plaintiffs cite us to two decisions of the supreme court of this state which they claim determines the question contrary to what we have written. State v. Seaton, 106 Mo. 198; .State v. Harris, 121 Mo. 445. Both cases relate to the time within which a bill of exceptions must be filed and the calendar shows that the last day in each case was Sunday and that the bill in each case was filed on Monday following. The court held the filing to be out of time and refused to consider the bill. These are the facts; but the question as to the last day being Sunday was not raised. The attention of the court does not appear to have been called to that phase of the case. Sunday is not mentioned and we only ascertain that the last day was Sunday by referring to the calendar. It is evident that the court did not decide the question presented here. The general question was decided without reference to the last day being Sunday. We, therefore, have nothing from that court as a guide in the determination of the case.
The case already referred to of Cooley v. Cook,. 125 Mass. 406, involved the question whether an attachment was run within four months next preceding a petition in bankruptcy. The last day fell on Sunday. The federal statute as to computation of time is like ours. It reads that time ‘‘shall be reckoned, in the absence of any expression to the contrary, exclusive of the first and inclusive of the last day, unless the last day shall fall on a Sunday, Christmas day, or on any day appointed by the president of the United States as a day of public fast or thanksgiving, or on the Fourth of July, in which case the time shall be reckoned exclusive of that day also.” The court held that Sunday should be excluded and Monday should be included in the computation.
There is one case (Allen v. Elliott, 67 Ala. 432) which has given expression to the same view taken in Patrick v. Faulke, supra. The Alabama statute is the same as ours. The court refers for authority to Bouvier’s Dictionary, Sunday. But singularly enough the rule is there stated exactly. to< the contrary. It is evident that the learned judges in writing the opinions in those cases, excluded Sunday from the time allowed in which to do the act, instead of excluding it from the count of the time. By such inadvertence their statement of the rule is in the face of the statute.
We have said nothing of those cases which refer to acts which must be done on court days, or those where one or more Sundays intervene in the period allowed for the act; since they have no application to the point involved here.
The motion to strike out the bill of exceptions will be overruled, and the cause continued to the next term, the defendant to file abstract and briefs in sixty days as per stipulation.