Conway & Nickerbocker v. Smith Mercantile Co.

• Decision Date: 27 April 1896
• Citation: 6 Wyo. 327,44 P. 940
• Parties: CONWAY & NICKERBOCKER ET AL. v. SMITH MERCANTILE CO. ET AL
• Court: Wyoming Supreme Court

44 P. 940

6 Wyo. 327

CONWAY & NICKERBOCKER ET AL. v. SMITH MERCANTILE CO. ET AL

Supreme Court of Wyoming

April 27, 1896

ERROR to District Court for Natrona County, HON. J. W. BLAKE Judge.

Hearing on motion to strike from the record the bill of exceptions.

Motion to strike overruled.

Burke &amp Fowler, for defendant in error; John B. Okie, for the motion to strike.

The successor of the trial judge had no authority to sign the bill of exceptions. (Stirling v. Wagner, 4 Wyo. 5; Wood v. Brown, 8 Ala. 564; Water S. & S. Co., v Tenney, 40 P. 442 (Colo.); Redman v. R. R. Co., 3 Wyo., 678; Alley v. McCabe, 147 Ill. 410; Jubb v. Thorp, 2 Wyo., 389; Woods v. Hilliard Fl. Co., id., 457; Techheimer v. Trounstine, 20 P. 704; Sahlein v. Gunn, 43 Mo. App., 315; Parroski v. Goldberg, 80 Wis. 339; Byrne v Clark, 31 Ill.App. 651; Marseilles v. Howland, 136 Ill. 81; Ry. Co. v. Johnson, 34 Ill.App. 351; Perkins v. Bakrow, 39 Mo. App., 331; Laewen v. Hicks, 1 id., 601; Thompson v. Seipp, 44 Ill.App. 515; Atch. & N. R. R. Co. v. Wagner, 19 Kan. 335; Wilson v. Giddings, 23 O. St., 561; 24 S.W. 325; Kincaid's Code Pl., Sec. 1245.)

The bill was presented too late. McBride v. Ry. Co., 3 Wyo., 186; Elliott App. Pro., Sec. 128, 802; U. S. v. Jones, 13 S.Ct. Rep'r, 840; Bank v. Elred, 143 U.S. 229; U. S. v. Carr, 61 F. 802; Miller v. Morgan, 67 F. 82; Cornell v. Hallett (Ind.), 40 N.E. 132: In re Murdock, 129 Mo. 488; U. S. v. C. O. & G. R. Co., 3 Okl., 404: Hanson v. Kinney (Neb.), 63 N.W. 926; Orten v. Tilden, 110 Ind. 131; DeHaven v. DeHaven, 46 id., 296; Richardson v. Ford, 14 Ill. 332; Webster v. French, 12 Ill. 302; Atkins v. Ins. Co., Met., 439; Ryan v. State, 10 Neb. 529; Newly v. Rogers, 40 Ind. 9; Kelly v. John, 41 N.E. 1069; Wilkinson v. Casfellow, 14 Ga. 122; Kirkpatrick v. Lex, 49 Pa. 122; White v. Guaranty Co., 65 N.W. 305 (Ia.).

C. C. Wright and Clark & Breckons, contra. In relation to the power of the successor of the trial judge to sign the bill, and contending that he had that power, cited (Ins. Co. v. Wilson, 8 Pet. 291; Bahusen v. Gilbert, 55 Minn. 334; Wood v. Car Co., 136 Ind. 598; 147 Ill. 410; 20 Pa. 183; Powten v. Wilson, 21 Fla. 165; Hays v. McNeally, 16 id., 403; Milvehal v. Miller, 2 Duer, 607; Ry. Co. v. Turner, 81 Ky. 489; 1 Tidds Pr., 703), and insisted that Stirling v. Wagner was only decisive of the question as to whether an ex-judge could sign a bill.

That the bill was presented in time. (Ry. Co. v. Gracy, 28 S.W. 736, 29 id., 579; Thomas v. Douglas, 2 Johns. Cases 226; Min. Co. v. Schrenier, 14 Mont. 121; Board v. Dart, 67 Ga. 765; Rogers v. Ry. Co., 70 id., 717; Gottleib v. Wolfe Co., 75 Md. 126; Houghwout v. Boisaubin, 18 N.J. Eq. 315; Proudman v. Melor, 4 H. & H., 122; Knox v. Simons, 3 Brown, Ch. 295; Ker v. Jeson, 3 Dowl. N. S., 538; Daknis v. Wagner, 3 Dowl., 535; Hah v. Dirks, 37 Mo. 574; Isaacs v. Ins. Co., Law R. 5 Ex., 296; Johnson v. Stevens, 23 S.W. (Ky.), 957; King v. Stevens, 5 East 244; Kendall v. Kingsley, 120 Mass. 95; 12 Ill. 302; 91 N.Y. 616; 18 Barb. 347.)

As to right of defendant to raise the question as to sufficiency of bill and especially as to time. (Coquard v. Weinstein, 15 Mont. 554; Shields v. Horbach, 40 Neb. 103; Blaine v. State, 31 S.W. (Tex.), 368; 9 Oh. C. C., 421.)

GROESBECK, CHIEF JUSTICE. CONAWAY, J., concurs. SCOTT, DIST. J., who sat in lieu of Mr. Justice Potter who was of counsel below, dissenting.

OPINION

GROESBECK, CHIEF JUSTICE.

John B. Oakie, one of the defendants in error, files his motion to strike from the record the bill of exceptions.

1. One of the grounds of this motion is that the bill was not reduced to writing and presented for allowance to either the court or the judge thereof in vacation, within the time allowed therefor. The order allowing time in which to prepare and present the bill of exceptions was made when the motion for a new trial was overruled, and the parties making said motion duly excepted to the ruling of the court thereon, and upon request were given "until" the second Monday in May, 1895, within which to prepare and present for allowance their bill of exceptions. The second Monday in May, 1895, we judicially know, and it is conceded under the statute then in force, was the first day of the term of the district court for Natrona County next succeeding the entry of the order allowing time for the preparation and presentation of the bill, and so the time allowed by such order was in effect, "until" the first day of the next succeeding term of the court. This was within the time allowed by the statute, which provides that time may be given to reduce the exception to writing, but not beyond the first day of the next succeeding term. Rev. Stat., Sec. 2646.

The bill was not presented for allowance until the first day of the next term, and counsel for the motion to strike the bill from the record contend that by the terms of the order allowing time for such presentation of the bill, the first day of the next term must be excluded, as the time allowed therefor was up to but not including the first day of the term. It has always been the approved practice under this statute to have the order granting time for the presentation of the bill to read "up to and including the first day of the next succeeding term of the court," but this custom was not followed, as the order gives time "until" the first day of the next term. The decision of this ground of the motion rests upon the construction to be given to the word "until," in the order allowing time for the preparation and presentation of the bill, and whether or not it includes or excludes the first day of the next term succeeding the entry of the order.

The word "until" may either in a contract or a law have an inclusive or exclusive meaning, according to the subject to which it is applied, the nature of the transaction which it specifies, and the connection in which it is used, and this rule extends to the correlatives of the word. Ordinarily the word like "from" and "between" excludes the day to which it relates. Kendall v. Kingsley, 120 Mass. 94. The authorities in parallel cases to the one at bar, are conflicting. See Webster v. French, 12 Ill. 301; Clark v Ewing, 87 Ill. 344. In a strong dissenting opinion in the last cited case a number of cases are reviewed which are applicable to the question here presented; Pepperill v. Burrell, 2 P. D. C., 674, where it was held that seven days' time for pleading gives the whole of the seventh day to plead in, after excluding the day on which the order was made; Oxley v. Bridges, 1 Doug. 67, where a rule to plead "by" a particular day was entered, that day was construed to continue until the office opened the next morning; Thomas v. Douglas, 2 Johns. Cas. 226, where an order was made enlarging the time to plead "until the second day" of the term, and judgment for want of a plea was entered on the second day of the term; and this was held irregular by the appellate court, Kent being at that time one of the judges, the judgment was set aside, and it was held that the order must be so construed as to include the second day of the term, although it read "until" that day; in Bruce v. Reed, 16 Barb. 352, the court said: "It has been decided that 'till' includes the day to which it is prefixed," citing Dakins v. Wagner, 3 Dowl. 535. To the same effect are the following authorities: Hahn v. Dierkes, 37 Mo. 574; Penn. Placer Mining Co. v. Schreiner, 14 Mont. 121, 35 P. 878; Gottlieb v. Wolf Co., 75 Md. 126, 23 A. 198, and cases cited; Houghwout v. Boisaubin, 18 N.J. Eq. 315; Board v. Dart, 67 Ga. 765; Rogers v. Cherokee Iron and Ry. Co., 70 Ga. 717. And it has been held that when time is given until a day certain to file a bill of exceptions, if it is filed on or before that day, it is filed in time. Railroad Co. v. Turner, 81 Ky. 489; R. R. Co. v. Thomas (Ky.), 96 Ky. 613, 29 S.W. 437; Ry. Co. v. Gracy, 28 S.W. 736 (Mo.). The order of the court in the case at bar gave until a day certain "within which" to file the bill, and under the positive provisions of the code of civil procedure, the exceptions must be reduced to writing and presented to the court or judge thereof in vacation "within the time given for allowance." It may be assumed that every order of court giving time beyond the trial term to present a bill of exceptions is made with reference to these statutory provisions. If the order gives time until the first day of the next term, it seems not to do violence to the language to construe the order as including that day, which is the first and only day after the trial term, when there is a court in session to which the bill may be presented. Such an order should not receive a strict construction resulting in a denial of the right of the party to present his bill of exceptions to the court, but rather a liberal construction preservative of that right. Time "until" a certain day, may be either inclusive or exclusive of the day mentioned, according to the intention of the court, and this intention may be inferred from the subject-matter and other considerations. If one has until the second Monday of May to perform an act or incur a forfeiture, it would be a harsh rule that would enforce the forfeiture after the performance of the act on that day. But the acts to be performed, the preparation and presentation of the bill, are by the terms of the order and the language of the statute to be done "within" a certain time, and in such case, the statutory method of computation also found in the code, must apply: "Unless otherwise specially provided, the time within which an act is required by law to be done, shall be computed by excluding the first day and including the last, and if the last be Sunday, it shall be excluded." Rev. Stat. Sec. 2334. It is...