Sims v. Sims, 6 Div. 999.

6 Div. 999. | Ala. | Dec 20, 1923

The statute (section 3793 of the Code of 1907), in prescribing the jurisdiction and grounds for divorce by subdivision 3, says:

"For voluntary abandonment from bed and board for two years next preceding the filing of the bill."

This necessarily means that two years must elapse between the abandonment and filing the bill. True, section 11 of the Code, as to the computation of time, says:

"Within which any act is provided by law to be done must be computed by excluding the first day and including the last."

But this statute applies to acts required to be done within a certain time, and not to time which must intervene before certain things can be done or before certain rights are barred, such as the foregoing quoted provision or the statute of limitations.

"Whatever may be the English doctrine upon the subject, it is the practice of our court to include one day and exclude the other, except when the statute requires so many entire days to intervene — in which case both are excluded." Owen v. Slatter,26 Ala. 547" court="Ala." date_filed="1855-01-15" href="https://app.midpage.ai/document/owen-v-slatter-6505518?utm_source=webapp" opinion_id="6505518">26 Ala. 547, 62 Am. Dec. 745.

The above-quoted provision of its own force and effect excluded the day on which the bill is filed as it fixes the period at two years "next preceding the filing of the bill." Indeed, counsel for the appellee concede, in brief, the correctness of the present method of computation in this instance, but contend, and we think correctly so, that, as per the averment of the bill, two complete years elapsed between the day of the alleged abandonment and the filing of the bill of complaint. The bill fixes the abandonment on February 19, 1921, and the bill was filed February 20, 1923. Therefore, excluding the 19th day of February, 1921, and the 20th of February, 1923, we have two complete years. In other words, start by including February 20, 1921, the day after the abandonment, and we have one full calendar year at the end of February 19, 1922; then start with February 20, 1922, and we have another full year upon the expiration of February 19, 1923, the day previous to filing the bill.

In the case of Owen v. Slatter, 26 Ala. 547, 62 Am. Dec. 745, the statute considered was passed on the 7th day of February, 1843, and the bill was filed on the 7th of. February, 1853, and the court held that the bill was filed before the expiration of 10 years after the act was passed. Had the bill been filed on the 8th the result would have no doubt been different.

The circuit court properly overruled the respondent's demurrer to the bill of complaint, and the decree is affirmed.

Affirmed.

SAYRE, GARDNER, and MILLER, JJ., concur.