56 Kan. 545 | Kan. | 1896
The opinion of the court was delivered by
: I. Truitt, being the owner of nine lots lying together in Kansas City, Kan., in 1888, planned the improvement of the same by building six double houses thereon. He entered into contracts with several parties to perform work and furnish materials therefor. Pie also executed six several mortgages to Bowman, to cover each house with the contiguous ground, and, at the same time, six second mortgages to Ball on the same properties. Truitt afterward sold four of the properties to different parties, and he mortgaged the other two to Caryl, this being the third mortgage, in order of time, upon said two properties. Mechanics’ liens were filed afterward upon these six several properties, and the Kansas Triphammer Brick Works and the Wyandotte Coal Company filed single liens covering all the properties. Certain of the first and second mortgages were assigned, and seven separate suits were filed in the district court to foreclose said mortgages and mechanics’ liens. For the purpose of trial, these several actions were consolida
II. The record shows that final judgment was rendered on February 21, and the motions for a new trial were not filed until Februai’y 25, 1891. One of the four attorneys interested in obtaining a new trial filed an affidavit to the effect that two of his associates resided at Topeka, and that he did not ascertain their wishes as to motions for a new trial until Wednesday, February 25, and that by reason of illness in his family, and being engrossed in business in the United States circuit court at Kansas City, Mo., on Februai’y 24, he was unable to file the motions until the 25th, this being the third day, excluding Sunday, after the decision was rendered. The court found that the motions were filed in due time, but there is no finding of fact to the effect that their earlier filing was “ unavoidably prevented ” (Civil Code, §308) ; and we think the showing insufficient for that purpose. The judgment was rendered on Saturday, however, and the plaintiffs in error contend that the Sunday following should be excluded from the computation, thus allowing three court days after the date of the judgment for filing the motions. This would be allowable in Missouri, Georgia, and perhaps some other states. (National Bank v. Williams, 46 Mo. 17 ; Cattell v. Publishing Co., 88 id. 356 ; Neal v. Crew, 12 Ga. 93.) Our statute governing the subject (Civil Code, §722) enacts that ‘‘the 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.” Under identical statutes, in New York and Indiana, it has been held, that while Sunday is excluded
III. Oaryl set up his mortgage, and it was adjudged
The case will be dismissed for want of necessary parties.