O'Connor v. Towns

• Decision Date: 31 December 1846
• Parties: CHARLES J. O'CONNOR v. ROBERT J. TOWNS
• Court: Texas Supreme Court

1 Tex. 107

CHARLES J. O'CONNOR

v.ROBERT J. TOWNS

Supreme Court of Texas.

December Term, 1846.

Appeal from Brazoria.

1st. If it do not appear in the record that defective pleadings were objected to in the court below, the defects will be considered here as having been waived.

2d. In the computation of time, whether the day on which the act was done or an event happened is to be included or excluded must depend upon the circumstances and the reason of the thing, so that the intention of the parties may be effected. Such a construction should be given as would operate most to the ease of parties entitled to favor, and by which rights would be secured and forfeitures avoided. [24 Tex. 137;26 Id. 82.]

8d. When process is required to be served five days before the return day thereof, there must be five intervening days between the service and the return. Neither the day of the service nor that of the return is to be included in the computation.

The facts are stated in the opinion of Mr. Chief Justice Hemphill.

Harris, for appellant, no brief.

J. Webb, for appellee, cited Evans' Notes, 2 Poth. on Obl. p. 42; 3 Durn. and East, 623; Douglass, 446; 1 Raym. 280; 1 Brownlow, 156; 2 Roll. Abr. 520; Hobart, 139.

HEMPHILL, C. J.

In this case the defendant in the court below came in limine litis, and without filing an answer pleaded in abatement of the suit or process on two grounds:

1st. That it was not properly tested, and

2d. That it was not served on him five days before the commencement of the term of the court.

This, as a plea in abatement, was insufficient without the oath of the defendant. The 9th sec. of the act to regulate proceedings in civil suits, 4 Laws of Texas, p. 88, provides that no plea in abatement shall be admitted or received unless the party offering the same shall prove the truth thereof by oath or affirmation. Under the common law it is not necessary to support the truth of a plea in abatement by affidavit, and under the statute of Ann, an oath is required only in relation to matters dehors the record, and not to such as will appear to the court on inspection of their own proceedings. But the rule established by the above statute (which is now repealed) admitted of no exception whatsoever, and although the truth of the matters objected to in the plea of the defendant would appear from an inspection of the record, yet that did not relieve the party from compliance with the requisition of the law to support his plea by affidavit. It was, however, the privilege of the plaintiff to waive all exception to defects in the plea, and it does not appear from the record that any objection was made to this plea, although not supported by oath as required by law.

There is no entry of any exception to its admission, of any refusal on the part of the court to take it into consideration, or order for its rejection; on the contrary, a part of the judgment of the court is, that the exceptions made “to the service of the writ of citation having been overruled, and the defendant still failing to appear,” etc. To be received and considered were necessary preliminaries to the exceptions being overruled, and we must therefore consider the plea as having been before the lower courts, and its action thereon is now brought up for review.

The only portion of the plea which we regard as resting on any solid ground is that in which it is averred that he is not bound to answer, because no citation or copy of the petition was served on him five days before the commencement of the term of the court. The provision of law by which the question raised by the defendant in the court below is to be decided is found in the latter clause of the 7th sec. of the act establishing the jurisdiction and powers of the district court, approved December 22, 1836, 1 Laws of Texas, p. 201, which is in the following terms, viz.: “And all original process and all subsequent process issued thereon shall be returnable on the first day of the term next succeeding after the issuing of such process, and shall be executed at least five days before the return day thereof.”

It is admitted that the service of the citation was made on Wednesday, and that the Monday succeeding was the first day of the next term of the court, but it is contended that according to the legal mode of computing time (that is to include one of the named days and exclude the other), the day of service ought to be considered inclusive and constituting one of the five days which are required to intervene between the service and the return of the writ. The day of the return is to be excluded in the consideration of this question, as the defined period of five days must expire before the commencement of that day.

The proposition to be determined is, whether five full days must intervene between the service and the return of the citation, or whether the day of service may be regarded and enumerated as one of these days, and as forming a unit in the time to be computed.

The clause under consideration differs in its phraseology in one particular from the cases which I have been enabled to examine. In most of them the limitation of time was so many days after an act done or an event; here it is so many days before an event. But this is a distinction without a difference, as it will be shown hereafter that in all cases where computation of time comes in question, technical constructions of particular phrases are disregarded and the intention of the parties is sought out and made effectual.

In the earlier cases many distinctions were drawn by the English judges, as to the proper construction of the terms, “from the date,” “the day of the date,” an “act done,” “the making,” etc.

These cases were all examined by Lord Mansfield in Pugh v. the Duke of Leeds, Cowp. 714, and it was shown that for a considerable period it was ruled that the phrase “from the date” of an instrument was inclusive of the day on which it was made; and “from the day of the date” was exclusive of that day. Afterwards, and for another considerable period it was decided that they both meant precisely the same thing, and both were exclusive; that finally the common sense of mankind revolted at this doctrine and again arose a conflict of decisions as to the meaning of these expressions, and whether one should be regarded as inclusive and the other exclusive.

The inconsistency and absurdity of these decisions extending over two hundred and fifty years were commented on and the true rule laid down for the computation, viz.: that the terms used should be construed to be inclusive or exclusive, according to the context or subject matter; that the parties necessarily understand and use language in that sense which would make their deeds effectual; that courts of justice must construe the words of parties so as to effectuate their deeds and not destroy them; and that for courts of justice to determine words against the generally received sense and acceptation of the words themselves is laying a snare to entrap mankind. Hence the intention is made the governing principle, and this being ascertained from the context or the subject matter must be enforced, and ought not to be defeated by frivolous distinctions or niceties of grammatical construction. In the decision of the case the words “from the day of the date” were construed to be inclusive of the day on which the deed was made; and this construction was adopted in order to give effect to the intention of parties, although it was in opposition to the mass and weight of authorities for centuries.

Reviewing some of the cases that have been since decided, we find that the case of the King v. Adderly, Douglass, 462, was upon a motion for a supersedeas upon an attachment against a former sheriff for not returning a writ.

The statute provided that no sheriff should be liable to be called upon to make a return of any writ or process unless he be required to do so within six months after the expiration of his office. On the question of whether the day of quitting the office should be included as included in the six months, or excluded, the court at first were of the opinion that the day on which the sheriff left the office should be excluded, as the sheriff might be called on to act on that day; but afterwards considering that the statute was made for the case of sheriffs with regard to the return of process, that the proceeding was a penal one against the defendant, who was entitled to a favorable construction of a statute expressly made for the case of sheriffs, they changed their first opinion and decided that the day of leaving the office should be included.

In support of their opinion in this case the court referred, among other cases, to the...