Board of Councilmen of City of Frankfort v. Farmers' Bank of Kentucky

• Decision Date: 02 March 1899
• Citation: 49 S.W. 811,105 Ky. 811
• Parties: BOARD OF COUNCILMEN OF CITY OF FRANKFORT v. FARMERS' BANK OF KENTUCKY. SAME v. BANK OF KENTUCKY.
• Court: Kentucky Court of Appeals

49 S.W. 811

105 Ky. 811

BOARD OF COUNCILMEN OF CITY OF FRANKFORT v. FARMERS' BANK OF KENTUCKY.

SAME v. BANK OF KENTUCKY. ^[1]

Court of Appeals of Kentucky.

March 2, 1899

"To be officially reported."

Petition for rehearing. Granted.

DURELLE J.

In each of these two cases the judgment appealed from was rendered January 21, 1896, and the appeal was granted by the clerk of the court of appeals, upon application of appellant, January 21, 1898. In each case the plea of limitation is filed, and motion made to dismiss the appeal, under section 745 of the Civil Code of Practice, which provides: "An appeal shall not be granted, except within two years next after the right to appeal first accrued."

In Smith v. Cassity, 9 B. Mon. 192, where the decree was rendered on the 25th day of September, 1845 and the writ of error sued out on the 25th day of September 1848, it was held that the then-existing period of limitation of three years had not expired, the court using the following language: "The universal rule of computing time from one day to another is to exclude one and include the other." But in Chiles v. Smith's Heirs, 13 B. Mon. 460 the final decree was rendered on October 18, 1848, and the writ of error sued out October 18, 1851. The statute was, in language, similar to the existing statute, and provided that no writ of error should be sued out, "except in three years next after the judgment or final decree, and not thereafter." The court, in a very carefully considered opinion by Judge Simpson, in which the then-existing authorities were discussed, said: "If the day in which the decree is rendered is to be included in the computation of the time, then the three years had expired on the 17th of October, 1851, and the bar was complete when the writ of error was sued out. The rule in regard to the computation of time seems to be that, when the computation is to be made from an act done, the day in which the act was done must be included, because, since there is no fraction in a day, the act relates to the first moment of the day in which it was done; but, when the computation is to be from the day itself and not from the act done, there the day in which the act was done must be excluded." But it is urged that section 681 of the Code of Practice has changed the rule. That section reads as follows: "If a certain number of days be required to intervene between two acts, the day of one only of the acts may be counted." After a careful reconsideration of the question here presented, we are unable to see that the Code section just quoted applies to the question before us. It was intended to apply to cases like the one presented in Fehler v. Gosnell, 35 S.W. 1125, where the statute under construction provided that 14 days must elapse between the passage of an ordinance by the board of council and by the board of aldermen of the city of Louisville. Moreover, the law embodied in section 681 appears to have been first adopted in 1854, and to have been continued from that time down to the present, notwithstanding which the rule of construction announced in the case of Chiles v. Smith's Heirs has been repeatedly reaffirmed by this court, down almost to the present day. In Batman v. Megowan, 1 Metc. (Ky.) 544, decided in 1858, the statute required notice of an application to contest the election to be given within 10 days after the final action of the board of examiners. They acted on the 6th; and, on the authority of Chiles v. Smith's Heirs, notice given on the 16th was held too late. Counsel for appellant called attention to the fact that in that case it was held (page 549) that the part of the statute which directs the sheriff to deposit the pollbooks...