Monell & Lashley v. Terwilliger

8 Neb. 360 | Neb. | 1879

Lake, J.

This is a proceeding in error to reverse the judgment of the district court for Lancaster county dismissing an appeal taken from a judgment of a justice of the peace. The grounds of the dismissal .were — First That the undertaking required by see. 1007 of the code of civil procedure was not given within the time limited by the statute. Second. That the transcript was not filed in the district court within thirty days from the rendition of the judgment appealed from.

Section 895 of the code of civil procedure is as follows: “The time within which an act is to be done as herein provided shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.” This section is one of the miscellaneous provisions of the code, and is applicable as well to proceedings before justices of the peace and other inferior courts as to courts of record.

It appears that the judgment of the justice of the peace was rendered on the sixteenth day of August, 1878, and that the undertaking in appeal was given and duly approved on the twenty-sixth of the same month. Excluding the day on which the judgment was entered as directed by the aforesaid section, we find the undertaking was given on the tenth day thereafter, and therefore within the statutory time. But the full scope of this statutory rule for computing time is more especially noticeable when applied to the second point, in counting up the thirty days given by section 1008 of the code of civil procedure, as amended by the act of February 19th, 1877, within which to file the transcript in the district court. Laws 1877, p. 15. By excluding the sixteenth of August, the day on which the judgment was rendered, thirty days, as ordinarily counted, would carry us forward only to the fifteenth day of September, but as this was a Sunday that year it must be excluded from the count, and the following Monday, the sixteenth, the day on which it was actually filed, included to make the full statutory period of time.

But on this last point we will add, that even if the transcript had not been filed within the statutory thirty days, still as the neglect to file it was not continued beyond the second day of the next succeeding term of the district court, it worked no forfeiture of the appellants’ rights. This we have already held during the present term in the case of Roesink v. Barnett, ante p. 146, wherein the question was squarely presented.

The judgment of the district court in dismissing the appeal is therefore reversed, and the appeal reinstated.

Judgment accordingly.