Caravella v. Bernheim Distilling Co.

• Decision Date: 17 June 1915
• Docket Number: 906
• Citation: 13 Ala.App. 458,69 So. 241
• Parties: CARAVELLA v. BERNHEIM DISTILLING CO.
• Court: Alabama Court of Appeals

69 So. 241

13 Ala.App. 458

CARAVELLA v. BERNHEIM DISTILLING CO.

No. 906

Court of Appeals of Alabama

June 17, 1915

Appeal from City Court of Birmingham; John H. Miller, Judge.

Action by the Bernheim Distilling Company against George Caravella. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

C.B. Powell, of Birmingham, for appellant.

Sterling A. Wood, of Birmingham, for appellee.

PELHAM P.J.

The appeal in this case is from a judgment by default rendered by the court below on November 2, 1914, in a suit brought by the appellee on the common counts on September 26, 1914; summons and complaint having been executed on the defendant, who is the appellant here, on October 2, 1914. The judgment against the defendant having been entered on November 2, 1914, it is the appellant's contention that the judgment was prematurely rendered, in that the 30 days allowed the defendant for pleading had not expired on the day of the rendition of the judgment against him. The minute entry shows that, the defendant having failed to appear, but making default, the court proceeded to hear and determine the cause on motion of the plaintiff, and rendered final judgment against the defendant on the said 2d day of November, 1914.

Under the terms of the statute regulating the procedure and practice in the trial court, the defendant was allowed 30 days from the date of service of summons and complaint on him within which to plead. Acts 1888-89, p. 995, § 5. The month of October has 31 days, and the last day allowed the defendant under the rules of pleading based upon the statute for appearing and pleading was the 1st day of November, 1914 and the judgment was not rendered until the next day November 2, 1914. But, the 1st day of November in this year (1914) happening to be on Sunday, under the provisions of section 11 of the Code of 1907, in computing the time within which the defendant was allowed to plead, this day (Sunday) must be excluded, and the Monday following (the 2d day of November, the day on which the judgment was rendered) must be included and counted as the last day within which the defendant was allowed to appear and plead.

It will be seen that, if Sunday, November 1, 1914, should be excluded in making the computation of the 30 days, the next Monday, November 2, 1914, the day on which the court rendered judgment against the defendant, must be included to constitute the period allowed for appearance and pleading, and that a judgment rendered on that date would be premature, as rendered before the expiration of the time within which the defendant was allowed to appear and plead. A judgment by default should not be taken before the expiration of the time allowed by law for the answer or plea. Hollis v. Herzberg, 128 Ala. 474, 29 So. 582; Ex parte Howard-Harrison Iron Co., 119 Ala. 484, 24 So. 516, 72 Am.St.Rep. 928. It follows that the judgment rendered by the trial court was prematurely entered, and must be set aside and annulled.

Section 11, as it appears in the present Code of 1907, has been amended or rewritten by the Code...