Clark v. American Exchange Trust Co., 4-3660.

• Decision Date: 08 October 1934
• Docket Number: No. 4-3660.,4-3660.
• Citation: 74 S.W.2d 974
• Parties: CLARK v. AMERICAN EXCHANGE TRUST CO.
• Court: Arkansas Supreme Court

Page 974

74 S.W.2d 974

CLARK v. AMERICAN EXCHANGE TRUST CO.

No. 4-3660.

Supreme Court of Arkansas.

October 8, 1934.

Appeal from Circuit Court, Crittenden County; Neil Killough, Judge.

Action between C. M. Clark, curator, and the American Exchange Trust Company. From a judgment, Clark appeals, and the American Exchange Trust Company moves to dismiss the appeal.

Appeal dismissed.

C. B. Nance, of Memphis, Tenn., and R. V. Wheeler, of Marion, for appellant.

J. H. Carmichael and Sam Rorex, both of Little Rock, for appellee.

PER CURIAM.

Appellee moves the dismissal of the appeal herein because filed one day too late. The facts are the six months provided by statute (Crawford & Moses' Dig. § 2140) for lodging appeals in this court expired on Sunday, August 26, 1934, and this appeal was lodged here on Monday following. Under authority of Bank of El Paso v. Neal, 181 Ark. 788, 27 S.W.(2d) 1024, this appeal was lodged here one day too late, and must be dismissed.

The view here expressed does not conflict with the opinion of this court in McNutt v. State, 163 Ark. 122, 259 S. W. 1. In the case last cited we were dealing with a statute which required an act to be done within a certain number of days, whereas the statute here under consideration requires the act to be done within a certain number of months, and this marks the difference in construction and interpretation as determined by practically all, if not all, the courts.

Let the appeal be dismissed.

SMITH, Justice (dissenting).

In dismissing this appeal because the transcript was not filed until Monday, August 27, 1934, for the reason that the six months expired on August 26, which day was Sunday, the majority have followed the dissenting opinion of Chief Justice McCulloch in the case of McNutt v. State, 163 Ark. 122, 259 S. W. 1, 3, rather than the opinion of the majority of the court in that case written by Justice Hart.

That case recognized that there was a division in the authorities, and the dissenting opinion of Chief Justice McCulloch makes that fact clearly appear. In his dissenting opinion it was said: "It seems clear to me that this court, in holding that Sunday is to be excluded when the last day for appeal falls on that day, is deciding contrary to the almost unanimous decisions of other courts, and I think the ruling is contrary to the express language of the statute, which requires that the appeal must be perfected within 60 days. In excluding Sundays we are reading something into the statute which cannot be found there, for the manifest purpose of the lawmakers in framing this statute was not to allow 60 juridical days within which to perfect an appeal, but to fix a period of time, namely, 60 calendar days, within which an appeal must be perfected. The fact that in some instances we have statutes requiring appeals and such other proceedings to be completed within a very short time should be very persuasive to the Legislature, either to lengthen the time or to exclude Sundays, but it affords no reason why we should read something into the statute which is not found in its language."

However, this argument made by the learned Chief Justice did not convince the majority, and his view was not adopted by the other members of the court, and it occurs to me that the only question now presented is whether we should adhere to the majority opinion, or should recede from it and adopt the view so ably expressed in the dissenting opinion.

It is true the McNutt Case, supra, was a criminal case, whereas the instant case is not; but this fact makes no difference. The rule for computing time is the same in both.

It is true also that the statute construed in the McNutt Case related to the number of days within which an appeal must be perfected, whereas the statute here considered relates to the number of months within which to perfect an appeal; but it is respectfully submitted that this difference is of no controlling importance. The opinion of the majority in the McNutt Case was based upon the ground...