45 Mo. 312 | Mo. | 1870
delivered the opinion of the court.
This case is brought up on error from the First District Court, where judgment was rendered for the defendants. The action ■was to enforce a lien for materials furnished and supplied in the
The law applicable to this case declares that the account, etc., shall he filed with the clerk “within four months after the indebtedness shall have accrued.” The materials were furnished on the 8th da.y of November, 1867, and the lien was filed on the 9th day of March, 1868. The 8th day of March was Sunday. The four months expired on the 8th, and, as that day was Sunday, the whole contention springs out of the question whether a filing on Monday was sufficient, or whether it should have been on the preceding Saturday.
The statutory provision in regard to the computation of time declares that the ‘ 1 time within which an act is to be done, shall be computed by excluding the first 'day and including the last; if the last day be Sunday, it shall be excluded.” (2 Wagn. Stat. 888, § 6.) It must be conceded that the question is not entirely clear, or free from difficulty. Courts have frequently been embarrassed in computing the time within -which an act must be done ; and the decisions are inharmonious. In Oregon, on a statute using the precise phraseology of ours, the court holds that where the last day falls on Sunday, the act may be done on the succeeding Monday. (Carothers v. Wheeler, 1 Oregon, 194.)
But the weight of authority in respect to the construction of statutory acts is decidedly the other way — holding that when the last day for the performance of a given act falls on a Sunday, the act must be done on the preceding day. (Sedgw. Stat. & Const. Law, 420.) In the construction of rules of court in respect to time for pleading and other matters of practice, it is well settled that if the last day fall on Sunday, the party has the whole of the next day in which to perform the act required. (Cock v. Bunn, 6 Johns. 326; Borst v. Griffin, 5 Wend. 84; Lee v. Carlton, 3 T. R. 642; Solomons v. Freeman, 4 T. R. 557; Harbord v. Perigal, 5 T. R. 210; Shadwell v. Angell, 1 Burr. 56; 1 Sellon’s Pr. 95; 1 Tidd’s Pr. 433; Grah. Pr. 220-230, 713; 2d ed.)
So, on contracts in regard to which no days of grace are allowed. There, if the specified time for payment or performance fall on
Whilst the lien law is beneficial and just, and highly favored, yet it gives an extraordinary right to the party seeking to avail himself of its advantages ; and he must, therefore, bring himself strictly within the conditions of the statute. I think that the lien should have been filed on Saturday, and that Monday was too late. It follows that the judgment of the District Court was right and-should be affirmed.
Judgment affirmed.