Patrick v. Faulke
| Decision Date | 31 January 1870 |
| Parties | JAMES AND WILLIAM PATRICK, Plaintiffs in Error, v. M. D. FAULKE et el., Defendants in Error. |
| Court | Missouri Supreme Court |
Error to First District Court.
Lay & Belch, for plaintiffs in error.
I. The exclusion of the first and the last days clearly means that the party shall have four months within which to file his lien, besides these days, and without counting either one of them. (Carothers v. Wheeler, 1 Oregon, 194.)
King Brothers, and Ewing & Smith, for defendants in error.
To have been in time, the lien should have been filed on the 7th of March. (Sedgw. Stat. & Const. Law, 420; Broome v. Wellington, 1 Sandf. 664; ex parte Dodge, 7 Cow. 147; 2 Hill, 376.)
This case is brought up on error from the First District Court, where judgment was rendered for the defendants. The action was to enforce a lien for materials furnished and supplied in the erection of a building, and the only question presented by the record is whether the same was filed within the statutory time.
The law applicable to this case declares that the account, etc., shall be filed with the clerk “within four months after the indebtedness shall have accrued.” The materials were furnished on the 8th day of November, 1867, and the lien was filed on the 9th day of March, 1868. The 8th day of March was Sunday. The four months expired on the 8th, and, as that day was Sunday, the whole contention springs out of the question whether a filing on Monday was sufficient, or whether it should have been on the preceding Saturday.
The statutory provision in regard to the computation of time declares 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.” (2 Wagn. Stat. 888, § 6.) It must be conceded that the question is not entirely clear, or free from difficulty. Courts have frequently been embarrassed in computing the time within which an act must be done; and the decisions are inharmonious. In Oregon, on a statute using the precise phraseology of ours, the court holds that where the last day falls on Sunday, the act may be done on the succeeding Monday. (Carothers v. Wheeler, 1 Oregon, 194.)
But the weight of authority in respect to the construction of statutory acts is decidedly the other way--holding that when the last day for the performance of a given act falls on a Sunday, the act must be done on the preceding day. (Sedgw. Stat. & Const. Law, 420.) In the construction of rules of court in respect to time for pleading and other matters of practice, it is well settled that if the last day fall on Sunday, the party has the whole of the next day in which to perform the act required. (Cock v. Bunn, 6 Johns. 326; Borst v. Griffin, 5 Wend. 84; Lee v. Carlton, 3 T. R. 642; Solomons v. Freeman, 4 T. R. 557; Harbord v. Perigal, 5 T. R. 210; Shadwell v. Angell, 1 Burr. 56; 1 Sellon's Pr. 95; 1 Tidd's Pr. 433; Grah. Pr. 220-230, 713; 2d ed.)
So, on contracts in regard to which no days of grace are allowed. There, if the specified time for payment or performance fall on Sunday, the debtor has the following Monday on which to discharge his obligation. .) But in commercial law, where days of grace are allowed, the rule has always been different; and where a bill or note falls due on...
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State ex rel. Bulger v. Southern
...have been made. The construction contended for by respondent was given this statute by this court at the January term, 1870. [Patrick v. Faulke, 45 Mo. 312.] At March term, 1870 (Bank v. Williams, 46 Mo. 17), as is pointed out in Jordan v. Railroad, 92 Mo.App. 84, the Patrick case was "virt......
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Styles v. DiCkey
...overruling the two former Missouri contrary constructions of statute as construed in Miner v. Tilley, 54 Mo. App. 627, and Patrick v. Faulke, 45 Mo. 312, which last-mentioned case has been followed in California in Hibernia v. O'Grady, 47 Cal. 580, that state having adopted the rule in the ......
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State v. Southern
...have been made. The construction contended for by respondent was given this statute by this court at the January term, 1870. Patrick v. Faulke, 45 Mo. 312. At the March term, 1870 (Bank v. Williams, 46 Mo. loc. cit. 19), as is pointed out in Jordan v. Railroad. 92 Mo. App. loc. cit. 85, the......
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Manchester Iron Works v. E. L. Wagner Const. Co.
.... ." One of the cases cited by appellants in support of the contention that the suits were not filed within the statutory time is Patrick v. Faulke, 45 Mo. 312. In that case claimant had four months after the indebtedness accrued in which to file his lien account. The four-months period end......