Bruce v. Pope

• Decision Date: 14 May 1917
• Docket Number: No. 30362.,30362.
• Parties: BRUCE v. POPE.
• Court: Iowa Supreme Court

179 Iowa 1161

162 N.W. 797

BRUCE

v.POPE.

No. 30362.

Supreme Court of Iowa.

May 14, 1917.

Appeal from Superior Court, City of Cedar Rapids; C. B. Robbins, Judge.

This cause was fully submitted to a justice of the peace on Thursday, July 24, 1913, and he entered judgment therein on Monday, July 28, 1913. The question we have is whether this entry was made so late as that the judgment is void. Affirmed.Jamison, Smyth & Hann, of Cedar Rapids, for appellant.

Jos. Mekota, of Cedar Rapids, for appellee.

SALINGER, J.

I. The judgment must be entered “within three days after the cause is submitted to the justice for final action.” Section 4522, Code 1897; Worrall v. Chase, 144 Iowa, at 668, 123 N. W. 338. The trial court held that judgment was entered in time. Many of the cases cited against this conclusion are inapplicable. They all hold that where the judgment is entered later than three days after submission, such judgment is void. The sole contention here is over whether the judgment was entered later than three days after submission.

The case was submitted to Justice A. E. Nugent on Thursday, July 24, 1913. Excluding the day of submission the third day thereafter ended with Sunday, July 27th. The judgment entry was made on Monday, July 28th. It is plain then that the sole question is what construction should be given the statute provision that in computing time the first day shall be excluded and the last included, unless the last falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday. Section 48, subd. 23, Code 1897. If this statute applies, the judgment below is right; otherwise it is erroneous.

Appellant urges two decisions in this court: Robinson v. Foster, 12 Iowa, 186, decides nothing except that where ten days is required between the day of service and the first day of the term into which the notice brings the action there must be ten clear days, and that, therefore, the said statute rule for computing time has no application. For some reason the case claims to be sustained by Womack v. McAhren, 9 Ind. 6. Same merely holds that where ten clear days is not required, the day of service is to be excluded, and the first day of the term included. In Conklin v. Marshalltown, 66 Iowa, 123, 23 N. W. 294, the sole question is whether where a term began on Monday, December 10th, a petition filed on Thursday, November 29th, preceding, was filed in time; and it was held it was. The result was reached by excluding the day of filing and including the opening day of the term. Between these two dates intervened Sunday, December 9th. On the rule adopted the petition had been on file as long as ten days when that Sunday ended. It certainly was not filed less than ten days on Monday, December 10th, if filed for ten days on Sunday, December 9th. It is difficult to see how either counting or excluding that Sunday was involved in the determination in that case. Where something is once filed, every day on which it remains on file must be counted to make up the number of days that it must remain on file prior to a stated day; and such paper is as much on file on Sunday as on any other day. That this is so throws no light on whether if an act is required to be done on Sunday it may or may not be done effectively on the Monday next succeeding. The first case, in terms, and the last in effect, says, “It is only when the act is to be done on Sunday that that day is to be excluded and the whole of the next day included.” Granting that it was necessary to say this we are unable to see how it aids appellant. The basis for the statement is that neither requiring a notice to be served ten clear days before the term opens nor that a petition to be filed ten days before the term opens require anything to be done on Sunday. That in such circumstances the provision making extension to Monday is not applicable has no bearing on whether the extension is available in the case at bar. If the succeeding Monday may not be used for entering the judgment here in consideration, then entering it, if done on the last of the three days, would require the doing of something on Sunday.

Harrison v. Sager, 27 Mich. 467, is also relied upon and said to be squarely in point for the appellant's contention. The statute construed therein requires judgment to be entered within four days. The record discloses no statute like our own which defines what “within three days” may in some circumstances mean. Proceeding without reference to such a statute, the Michigan court holds, and rightly, that permitting a thing to be done within four days fixes a maximum, that it leaves it competent to do the act on the first day as well as on the fourth, and that since the statute does not take Sunday into consideration, the fact that the last day is Sunday does not work an extension. We probably should hold to the same view if our said computation of time statute did not exist. We must read all the statutes on the subject together. Thus read, there is a requirement to enter judgment within three days after submission, and a provision that if the last of those three days, on a computation excluding the day of submission, falls on Sunday, the entry may be effectively made on the next following Monday. See State v. Michel, 52 La. Ann. 936, 27 South. 565, 49 L. R. A. 218, 78 Am. St. Rep. 364. We must therefore hold that the judgment entered is not void for being entered too late.

II. Without reference to our statutes, there is much support in reason and authority for the conclusion we reach. If a period of time fixed by a decree or order of court or by statute for an act to be accomplished closes on Sunday, the general rule is to exclude that day in the computation of time, and to allow all of the following Monday for the accomplishment of such act. Kipp v. Fitch, 73 Minn. 65, 75 N. W. 752;Spencer v. Haug, 45 Minn. 231, 47 N. W. 794;Johnson v. Merritt, 50 Minn. 303, 52 N. W. 863;State v. May, 142 Mo. 135, 43 S. W. 637;Robinson v. Lodge, 114 Cal. 41, 45 Pac. 998;California Co. v. Quinchard, 119 Cal. 87, 51 Pac. 24;People v. Rose, 167 Ill. 147, 47 N. E. 547;Chicago v. Iron Works, 93 Ill. 222;Hicks v. Nelson, 45 Kan. 47, 25 Pac. 218, 23 Am. St. Rep. 709;Gage v. Davis, 129 Ill. 236, 21 N. E. 788, 16 Am. St. Rep. 260;Backer v. Pyne, 130 Ind. 288, 30 N. E. 21, 30 Am. St. Rep. 231;Street v. United States, 133 U. S. 299, 10 Sup. Ct. 309, 33 L. Ed. 631;Monroe v. Becker, 147 U. S. 47, 56, 13 Sup. Ct. 217, 37 L. Ed. 72;Porter v. Pierce, 120 N. Y. 217, 24 N. E. 281, 7 L. R. A. 847;State v. Stuckey, 78 Mo. App. 533;In re Senate Resolution, 9 Colo. 626, 21 Pac. 472;Edmundson v. Wragg, 104 Pa. 500, 49 Am. Rep. 590;Gibbon v. Freel, 65 How. Prac. (N. Y.) 278;Hodgson v. Banking House, 9 Mo. App. 24;Bacon v. State, 22 Fla. 46;English v. Williamson, 34 Kan. 212, 8 Pac. 214. If Sunday is to be considered within the time, though it is the last of the three days, it should follow that the justice is empowered to enter that judgment on that Sunday. We think he is not so empowered. Sunday is generally excluded as one of the days of the term of a court. Michie v. Michie, 17 Grat. (Va.) 109;Read v. Commonwealth, 22 Grat. (Va.) 924;Qualter v. State, 120 Ind. 92, 22 N. E. 100. While an act required to be done within 24 hours after notice must, if done in that time, be done on Sunday, that is so only if the circumstances are such as that it may lawfully be done on that day. Casey v. Viall, 17 R. I. 348, 21 Atl. 911. If a statute imposes a penalty for allowing freight received to remain unshipped for five days, an intervening Sunday is to be excluded in counting the five days. Branch v. Railway, 77 N. C. 347;Keeter v. Railway, 86 N. C. 346.

Even in cases where performance is exacted on the Saturday preceding the Sunday which is the last day of the period, there is the qualification that this is so only if the act is one which may not properly be done on Sunday. Keating v. Serrell, 5 Daly (N. Y.) 282; Allen v. Elliott, 67 Ala. 432.

In a dissent by Campbell, J., in Harrison v. Sager, 27 Mich. 476, he expresses the thought that the design of the statute which requires entry of judgment within four days was (and he speaks without reference to any computation statute) to allow the justice four acting days in any of which it would be lawful for him to do judicial acts. He adds that to exclude Sunday is to limit him to three judicial days, and to raise a distinction which ought not to be raised, namely, that he is given more time in some cases than in others, and he cites Hughes v. Griffiths, 13 C. B. N. S. 324--that where action is to be had by a court, days not judicial are not to be included in the time limit fixed for such action. There is a rule that if an act is required by statute to be done within any number of days less than seven, Sunday is to be excluded in the computation. Simonson v. Durfee, 50 Mich. 80, 14 N. W. 706;Caupfield v. Cook, 92 Mich. 626, 52 N. W. 1031;First Nat. Bank v....