Daley v. Anderson

• Decision Date: 26 April 1897
• Citation: 48 P. 839,7 Wyo. 1
• Parties: DALEY v. ANDERSON ET AL
• Court: Wyoming Supreme Court

48 P. 839

7 Wyo. 1

DALEY v. ANDERSON ET AL

Supreme Court of Wyoming

April 26, 1897

Appeal from State Board of Control to District Court taken August 30, 1893.

ERROR to the District Court for Carbon County, HON. JESSE KNIGHT Judge.

William Daley appealed to the District Court from a decision of State Board of Control determining the priorities and amounts of appropriations of water from Separation Creek in Carbon County. The District Court sustained a motion to dismiss the appeal. From the order dismissing the appeal, Daley brought the case to the Supreme Court on error. Patrick Anderson and Robert Taylor were defendants in error. The facts are stated in the opinion.

Judgment affirmed.

McMicken & Blydenburgh, for plaintiff in error.

The word "month" means a calendar month. (L. 1888 Chap. 3, Sec. 3.) The time within which an act is to be done must be computed by excluding the first day and including the last. (Rev. Stat., Sec. 2341.) The day on which the appeal was perfected is to be excluded in computing the time for filing petition. (L. 1890-91, Chap. 8, Sec. 30.) The six months from August 30 would expire February 28 following. A calendar month which begins on any day other than the first day of a month, ends at midnight on the same date numerically less one of the next succeeding months; and a calendar month "after" or "from" any date other than the first of a month, ends at midnight on the same date numerically of the next succeeding month; and six calendar months at midnight on the same date of the sixth month after the date; but, as February had but twenty-eight days in 1894 the six months from August 30, 1893, did not expire until midnight of February 28, 1894. (Avery v. Pixley, 4 Mass. 459; Williamson v. Farrow, 1 Bailey, L. 611, 21 Am., Dec., 492; Glove v. Hare, 4 Neb., 131; McGinn v State, 46 Neb. 434, and cases there cited; Lester v. Garland, 15 Ves., Ch. 248; Brewer v. Harris, 5 Gratt., 285; Tramway Co. v Asso'n, 1 Q. B., 402 (1891), Hardy v. Ryle, 9 B. & C., 603; Guaranty & Co. v. Buddington, 27 Fla. 215; Watson v. Pears, 2 Campbell, 294; Com. v. Maxwell, 27 Pa. 444; Guaranty etc., Co. v. R. R. Co., 139 U.S. 137; Att'y. Gen'l of Wyo. Rep. 1893-1894, p. 82.)

Lacey & Van Devanter, for defendants in error.

The jurisdiction of the District Court over cases like this is wholly appellate. (Const., Art. 8, Sec. 2.) Such jurisdiction can not be conferred by consent of parties, and can only be acquired by a compliance with the statute regulating and providing for the appeal. The filing of the notice and bond is jurisdictional. They should have been filed August 2, 1893, but were not filed until August 30. Even had the notice and bond been filed in time, the petition was not. It is conceded that six months means six calendar months. There are but twelve calendar months in a year, so when any period of six calendar months is taken therefrom there must be a remaining period of six calendar months. Excluding August 30, there remained one more day in August; and including February 28, the time from taking the appeal (August 30) included August 31, and every day of each of the six calendar months from September to February inclusive. Therefore, there were six full calendar months and one day in addition. None of the authorities cited by plaintiff in error have any bearing here except the quotation from 46 Neb. from the English case of Migotti v. Colvill, 4 L. R. C. P., Div. 233. The reasoning there, it is submitted, is not good.

CORN, JUSTICE. CONAWAY, C. J., and POTTER, J., concur.

OPINION

CORN, JUSTICE.

This case arises upon an alleged erroneous ruling of the district court of Carbon County in sustaining a motion of the defendants in error to dismiss an appeal taken by plaintiff in error from an order of the State Board of Control, determining the priorities and amount of appropriations of water from Separation Creek in that county.

The order, as appears by a certified copy of it, was made June 3, 1893. The plaintiff in error filed his notice and undertaking on appeal under Sect. 28, Chap. 8, Laws of 1890-91, on August 30, 1893, and his petition under Sect. 30 on February 28, 1894.

At the hearing the defendants in error presented their motion to dismiss the appeal for the reason "that plaintiff and appellant's petition in appeal was not filed within the time by law provided," and the district court sustained the motion and dismissed the appeal.

The statute, Sec. 28, Chap. 8, Laws 1890-91, provides that "the party or parties appealing shall, within sixty days of the determination of the board of control, which is appealed from, and the entry thereof in the records of the board, file in the district court to which the appeal is taken, a notice in writing, stating, etc., and upon the filing of such notice the appeal shall be deemed to have been taken."

Sec. 30 provides that the appellant shall, within six months after the appeal, as provided for in Secs. 27, 28, and 29, is perfected, file in the office of the clerk of the district court a petition setting out the cause of the complaint.

The first question presented is whether the filing of the petition on February 28, 1894, complies with the requirement of the statute that it shall be filed within six months after taking the appeal, August 30, 1893.

It is conceded, and our statute provides, that the word "month," when used in the statutes of this State, means a calendar month. The defendant in error contends that the period from August 30 to February 28 includes the six calendar months of September, October, November, December, January, and February and one day, the 31st of August, in addition, and, it is argued, there being twelve calendar months in the year, that if six be taken away there must be six remaining. But, that deducting the six months from September to February inclusive, and the last day of August, as in this case, the remainder would be one day less than six months, and that consequently the period from August 30 to February 28 must be one day more than six months, and that therefore the filing was not in time, and that this fact is jurisdictional.

This reasoning is ingenious, to say the least, and we have found no American case where the precise point is decided. We are referred, however, to the English case of Migotti v. Colvill, 4 L. R. C. P. Div., 233, where the same reasoning was employed and the court decided adversely to the position of the defendant in error.

The real question is, What is the proper method of computing one or more calendar months? The term calendar month is used to distinguish it from the lunar month, and means a month as designated in the calendar, without regard to the number of days it may contain. In commercial transactions it means a month ending on the day in the succeeding month corresponding to the day in the preceding month from which the computation began. By our statute the first day is excluded and the last included, so that a month from August 30 would begin at the last...