91 S.W.2d 45 | Ky. Ct. App. | 1936
Affirming.
This is the second appeal of this case to this court. Our first opinion was rendered in one of the same style reported in
After perfecting this appeal in this court, appellee's counsel entered motion to strike the bill of evidence and the bill of exceptions from the record because not filed in time. That motion was passed to a hearing upon the merits, and it presents the first question for our determination. If it should be sustained (and we have concluded that it should be), then there is nothing left for our consideration except the question of whether the pleadings in the cause support the judgment, and which practice has so universally been followed and has become so thoroughly established as not to require a citation of our cases so holding, but the eases hereinafter referred to constitute part of them.
On the fourth day of the special term, and after the verdict had been returned and judgment rendered dismissing the petition, plaintiffs filed their motion for a new trial which was overruled twenty days thereafter, or on the twenty-fifth day of that term, and in the same order plaintiffs were given "until 8th day of (regular) July Term in which to prepare and file his (their) Bill of Exceptions." That (July) term of the court began on the second Monday of that month and continued twenty-four judicial days. On its eighth day an order was made (but upon whose motion, if any one, does not appear) extending the time within which the bills might be filed until the 12th day of August, which was the twentieth day of that term. Four days thereafter and on the twelfth day of the regular July term (and on the twentieth day of that month) that purported extending order was set aside and held for naught upon the stated grounds that it was entered by mistake or oversight and without directions of the court to do so. No objections or exceptions were taken to that order setting aside the previous one, and no effort thereafter was made to nullify or in any manner dispense with it. Giving to it its proper verity, and in the absence of any attempted *760 manifestation of error on the part of the court in entering it (the one setting aside the extending one and holding it for naught), we are compelled to determine the question as though no second extending order had ever been entered.
In an effort to sustain the motion to strike, appellee's counsel argue (a) that the word "until" as contained in the phrase of the first extending order "until 8th day of July term" for filing bills of exceptions and evidence, excluded the eighth day of that term and had the effect to terminate the extended period at midnight of the seventh day of the term, and (b) that if mistaken in argument (a), then under the facts of the record as above recited the tendering and filing of the exceptions on other days following the annulling order referred to was too late and that their motion to strike should prevail.
That the argued effect of the word "until," as measuring time within which the performance of an act shall be made, is the correct one in some instances is clearly shown to be true by an extended annotation to the case of Henderson v. Edwards, an Iowa opinion reported in
Among the Kentucky cases cited in the annotation as supporting the rule of including the day referred to are: Meadows v. Campbell, 1 Bush, 104; Louisville N. R. Co. v. Turner,
However, argument (b) appears to be sound and its upholding inescapable. Our opinions, without a single dissent, have construed the practice as outlined in the Code provisions, prescribing therefor, to be mandatory in the absence of some valid reason or excuse for a failure to follow them. There is none attempted to be shown here. If the order of the trial court in this case setting aside and nullifying the second extending order four days after it was made had been objected to and any reason shown why it should not be entered, or pointing out any error of the court in making it, so as to authorize us to review its action in that regard, we would then be in position to correct his action if found to be erroneous. But, as we have seen, no objection or exception was made to that nullifying order of the second extending one, and since it is recited therein that the latter was entered through mistake and oversight and without the directions of the court to make it, we are compelled to accept such recitations as true. When done, it clearly appears that the second extending order was never in fact directed by the court to be entered, either on its own motion or that of appellants. If no *762 such motion or order was ever made, then the time under the prevailing rule, supra, in this jurisdiction expired at midnight on the 8th day of the regular July term, 1935, of the Breathitt circuit court within which plaintiffs might file their bills of evidence and exception, but which was not done until long after such expiration. The motion to strike them from the record is therefore sustained, and which, as we have hereinbefore stated, leaves only the sufficiency of the pleadings to sustain the judgment. Their sufficiency for that purpose is not questioned, nor does counsel for appellants make any response in this court to the motion which we have sustained.
Wherefore for the reasons stated, the judgment is affirmed.