Cousins v. Commonwealth
| Decision Date | 26 April 1948 |
| Docket Number | Record No. 3384. |
| Citation | 187 Va. 506 |
| Parties | JACOB COUSINS v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Supreme Court |
Present, Hudgins, C.J., and Gregory, Eggleston, Spratley and Miller, JJ.
1. TIME — Month. — Under section 5(7) of the Code of 1942 (Michie) the word "month" when used in a statute means a "calendar month", or as generally stated, it means a month as designated in the calendar, without regard to the number of days it may contain, and is to be computed not by counting the days but by looking at the calendar. It runs from a given day in one month to a corresponding number in the next month, except where the last month has not so many days, in which event it expires on the last day of that month.
2. SUNDAYS AND HOLIDAYS — Legal Holidays Not on Same Basis as Sundays. — Legal holidays have generally not been placed on the same basis in the transaction of business as Sunday.
3. SUNDAYS AND HOLIDAYS — Saturdays. — The statute of Virginia, section 5(9) relative to Sunday, does not make the same provision in regard to Saturday.
4. SUNDAYS AND HOLIDAYS — Saturdays. — Saturday has not been made a legal holiday for all purposes or for the purpose of exclusion in the computation of time in which a procedural action should be done. Up to noon it is a business day, the same as any other business day. The remainder of the day is not dies non juridicus and judicial acts and business transactions then performed are valid.
5. APPEAL AND ERROR — Time for Appeal — Presentment on Saturday. — There is nothing in the statutes of Virginia which excuses one from presenting a petition for a writ of error or appeal, either before or after twelve o'clock noon on Saturday.
6. APPEAL AND ERROR — Time for Appeal — Construction of Statute. — The time limit set by section 6337 of the Code of 1942 (Michie) is jurisdictional. If that time is permitted to elapse before petition for appeal is presented, the petitioner is without remedy. The situation is not different where a remedy is barred by a statute of limitation.
7. APPEAL AND ERROR — Time for Appeal — Last Day of Period Falling on Saturday — Case at Bar. — In the instant case, the Commonwealth moved to dismiss a writ of error on the ground that the petition was not presented within four months as required by section 6337 of the Code of 1942 (Michie). The final judgment to which the writ of error was obtained was rendered July 22, 1947, and the petition for the writ was filed on November 24, 1947. November 22nd fell on a Saturday and defendant contended that Saturday was a legal holiday and since it was followed by Sunday neither day should be included in the computation in the four-month period for the filing of the petition as allowed by the statute.
Held: There was no merit in the contention.
Error to a judgment of the Circuit Court of Pittsylvania county. Hon. Kennon C. Whittle, judge presiding.
The opinion states the case.
Williams, Miles & Williams and William H. Parker, Jr., for the plaintiff in error.
Henry T. Wickman, Special Assistant to the Attorney General, for the Commonwealth.
The final judgment to which this writ of error was obtained was rendered July 22, 1947. The petition for the writ was filed on November 24, 1947. The Commonwealth has moved to dismiss the writ on the ground that the petition therefor was not presented within four months as required by Virginia Code, 1942, (Michie), section 6337.
Code, section 6337 reads, "No petition shall be presented for an appeal from, or writ of error or supersedeas to, any final judgment, decree, or order, whether the Commonwealth be a party or not, which shall have been rendered more than four months before the petition is presented * * *."
By Virginia Code, 1942, (Michie), section 5(7), the word "month" when used in a statute means a "calendar month," or, "as generally stated, it means a month as designated in the calendar, without regard to the number of days it may contain, and is to be computed not by counting the days, but by looking at the calendar, and it runs from a given day in one month to a corresponding number in the next month, except where the last month has not so many days, in which event it expires on the last day of that month." Bank Baird, 72 W. Va. 716, 79 S.E. 738; Hurley Bennett, 163 Va. 241, 244, 176 S.E. 171; Cochran Commonwealth, 122 Va. 801, 812, 94 S.E. 329.
Subsection 8 of our Code, section 5, provides that, "* * * where a statute requires a notice to be given or any other act to be done within a certain time after any event or judgment, that time shall be allowed in addition to the day on which the event or judgment occurred."
See School Board v. Alexander, 126 Va. 407, 101 S.E. 349, and Harris Sparrow, 146 Va. 747, 132 S.E. 694, with reference to computation of time with which bills of exception must be signed. Virginia Code, 1942, (Michie), section 6253.
From July 22, 1947, the day of the judgment, four calendar months would extend to November 22, 1947. Since the day of the judgment must be excluded in the computation of time, the four-month period began to run with the advent of July 23rd, and expired with the departure of November 22nd, that is, at midnight of November 22nd. The following day, November 23rd, was a day within another period of time.
November 22, 1947, fell on a Saturday. The defendant contends that Saturday is a legal holiday, and since it is followed by Sunday, neither day should be included within the computation of the four-month period for the filing of his petition. It is conceded that if the last day for filing fell on Sunday that the time limit was extended to the Monday following. Virginia Code, 1942, (Michie), section 5(9). Bowles Brauer, 89 Va. 466, 467, ...
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