Bailey v. Lubke

• Citation: 8 Mo.App. 57
• Parties: STEPHEN A. BAILEY, Respondent, v. GEORGE W. LUBKE ET AL., Appellants.
• Decision Date: 18 November 1879
• Court: Court of Appeal of Missouri (US)

8 Mo.App. 57

STEPHEN A. BAILEY, Respondent,

v.GEORGE W. LUBKE ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Nov. 18, 1879.

1. Neither sects. 27-29, p. 913, of the Revised Statutes of 1855, nor sect. 21 of the act of March 3, 1857, repeal the provision of the act of January 29, 1847, requiring the payment of a jury-fee on filing a transcript from a justice.

2. An appeal allowed May 24th is taken ten days before the first day of a term commencing June 2d.

3. That time is limited to do an act before a date, does not require the exclusion of both the day of the act and of the day before which the act is to be done.

APPEAL from the St. Louis Circuit Court.

Affirmed.

HITCHCOCK, LUBKE & PLAYER, for the appellants, cited: Knapp v. Skeele, 31 Mo. 434; Taylor v. McKnight, 1 Mo. 120; Lester v. Garland, 15 Ves. Ch. 257; Bigelow v. Wilson, 1 Pick. 485; Lubbock v. Cook, 49 Texas, 96.

PHILLIPS & STEWART, for the respondent, cited: The State ex rel. v. Gasconade County, 33 Mo. 102; Chiles v. Smith, 13 B. Mon. 460; Brown v. Bazan, 24 Ind. 194; Hahn v. Dierkes, 37 Mo. 575; Reynolds v. Railroad Co., 64 Mo. 70; Harbison v. Steamboat, 13 Mo. 226.BAKEWELL, J., delivered the opinion of the court.

On May 24, 1878, an appeal was taken from judgment of the justice. The next term of the Circuit Court was the first Monday of June, which was the third day of that month. On the 19th of June, plaintiff filed a motion to affirm, because appellants had failed to pay the jury-fee and to prosecute their appeal according to law. The respondent having, on the last-named day, paid the fee and filed the transcript, the court sustained the motion and affirmed the judgment.

If one who appeals from the judgment of a justice in St. Louis fails to pay the jury-fee, as required by the act of January 29, 1847, the Circuit Court may affirm the judgment upon the appellee's filing a transcript and paying the fee. Hardison v. Steamboat, 13 Mo. 226. It is contended here that the provision of the act of 1847 as to paying a jury-fee on filing the transcript, is repealed by implication, by sects. 27-29, p. 913, Revised Statutes of 1855, and by sect. 21 of the act of March 3, 1857, providing for a jury system in St. Louis County. These provisions are to the effect that fees allowed to jurors are to be taxed and collected as other costs in the case. These later acts do not provide expressly that the jury-fee shall be advanced, on filing the petition or transcript; but they do not prohibit it, and in no respect conflict with the law of 1847 in the matter under consideration. They work no repeal of the provision as to paying the jury-fee or filing the transcript.

Appellants claim that they were not in default; that it was enough that they paid the jury-fee and gave the notice ten days before the October term of the court.

The law provides (Wag. Stats. 850, sects. 20) that “all appeals allowed ten days before the first day of the term of the appellate court, next after the appeal allowed, shall be determined at such term unless continued for cause.” This appeal was allowed ten days before the June term. The second day of June was the day before the first day of the June term; the 1st of June was the second day before, etc.; and by counting backwards, we see that the 24th of May, on which the appeal was taken, was the tenth day before the June term. Taking the words as the statute (Wag. Stats. 887, sect. 6) requires, in the plain, ordinary, and usual sense, we think that the appeal was taken “ten days before the first day of the” June term. By computing thus we include the day on which the appeal was taken, and exclude the first day of the term. “In the computation of time,” says Judge Bates, in The State ex rel. v. Gasconade County, 33 Mo. 102, “it is laid down, generally, that where the computation is to be made from an act done, the day when such act was done is included.” In that case the candidate was required to file an oath five days before the election. The oath was filed on the 30th of October; the election was on the 4th of November. The court includes both the first and last day to prevent a forfeiture. But the general rule is to include the first and exclude the last day of the series, though our statute is, that the time within which an act may be done shall be computed by excluding the first day and including the last. Wag. Stats. 887, sect. 6.

We are referred by counsel for appellant to Taylor v. McKnight, 1 Mo. 120. The wording of the statute there construed is peculiar. It is...