State ex rel. Currie v. Weld

• Decision Date: 22 November 1888
• Parties: STATE EX REL. CURRIE ET AL. v WELD, COUNTY AUDITOR. SAME v JOHNSON, REGISTER OF DEEDS.
• Court: Minnesota Supreme Court

39 Minn. 426

40 N.W. 561

STATE EX REL. CURRIE ET AL.vWELD, COUNTY AUDITOR.

SAMEvJOHNSON, REGISTER OF DEEDS.

Supreme Court of Minnesota.

November 22, 1888.

(Syllabus by the Court.)

In the computation of time upon service of notice of trial in the district court, the day of service is excluded, and the first day of the term included.

In mandamus to enforce a purely public duty, not due the government as such, any private person may move as relator. Any citizen of the county may file an information to compel the register of deeds or auditor to keep his office at the county-seat. He need not precede his application by a demand on the officer to perform such public duty.

The peremptory writ need not precisely follow the alternative writ, in matters of detail. Upon the hearing the court may grant the relief in any form consistent with the case made by the complaint, presented and embraced within the issues.

Appeal from district court, Murray county; PERKINS, Judge.

Daniel Rohrer, for Charles E. Weld and S. G. Johnson, appellants.

Lind & Hagberg, H. C. Grass, and Eller & How, for Archibald Currie, Amos T. Crowl, and Neil Currie, respondents.

MITCHELL, J.

Appeals from judgments directing peremptory writs of mandamus against respondents, respectively, as register of deeds and auditor of Murray county, to remove their offices from the village of Slayton to Currie, the county-seat. The questions raised are all technical, none of them going to the merits of the case. Currie is the county-seat. The statute imperatively requires these officers to keep their offices at the county-seat, and both of respondents are, in violation of law, keeping them at a place six miles distant. Gen. St. 1878, c. 8, §§ 129, 174.

1. The first objection is to the sufficiency of the notice of trial in the district court. It was served October 10th, for a term of court beginning October 18th. The statute requires it to be served “at least eight days before the term.” Gen. St. 1878, c. 66, § 218. It also provides that the time within which an act is to be done shall be computed by excluding the first day and including the last. Gen. St. 1878, c. 66, § 82. This, in our opinion, establishes a general rule for the computation of time, applicable to service of notices of trial as well as to any other act in civil actions. In New York, from whose Code of 1848 we borrowed both of these sections, it had been so held before we adopted them in this state. Easton v. Chamberlin, 3 How. Pr. 411;Dayton v. McIntyre, 5 How. Pr. 117. It is also in harmony with the rule for the computation of time in other matters. Worley v. Naylor, 6 Minn. 192, (Gil. 123;) Coe v. Railway Co., 27 Minn. 197,6 N. W. Rep. 621;Smith v. Force, 31 Minn. 119,16 N. W. Rep. 704. It is also in accordance with the practice which has long obtained in most of the judicial districts in the state. There is a line of decisions to the effect that, when the statute requires the notice of trial to be served a certain number of days “before the first day of the term,” the first day of the term must also be excluded. We so construed rule 6 of this court in Greve v. Railroad Co., 25 Minn. 327. These decisions seem to go upon the idea that such language, in the statute or rule, by its terms expressly excludes the first day of the term. If it was a new question, we confess we can see no reason for distinguishing between the expressions “before the term” or “before the court” and “before the first day of the term.” But, be that as it may, we are not disposed to extend the rule of computation adopted in Greve v. Railroad Co. beyond the language of the rule then construed. The first day of the term should be included in the computation, and therefore the notice of trial was seasonably served.

2. The relators were “freeholders, tax-payers, and legal voters” of the county. This rendered them sufficiently interested to entitle them to move as relators. Who is “beneficially interested,” so as to entitle them to file an information, depends on the object to be obtained. When mandamus is resorted...