Ducheneau v. House

• Decision Date: 10 April 1886
• Citation: 10 P. 427,4 Utah 363
• Court: Utah Supreme Court
• Parties: CHARLES DUCHENEAU, RESPONDENT, v. HIRAM HOUSE, APPELLANT

10 P. 427

4 Utah 363

CHARLES DUCHENEAU, RESPONDENT, v. HIRAM HOUSE, APPELLANT

Supreme Court of Utah

April 10, 1886

APPEAL from a judgment of the district court of the first district. Sections 718 and 723 of the laws of Utah of 1884 are as follows:

"Sec 718. The time specified in the summons for the appearance of the defendant must be as follows:

"1. If an order of arrest is endorsed upon the summons forthwith.

"2. In all other cases, the summons must contain a direction that the defendant must appear and answer the complaint within five days, if the summons is served in the city or precinct in which the action is brought; within ten days, if served out of the precinct or city, but in the county in which the action is brought; and within twenty days if served elsewhere.

"Sec 723. When all the parties served with process shall have appeared, and the remaining defendants have made default, the justice must fix a day for the trial of said cause, and notify the plaintiff and the defendant [defendants] who have appeared, thereof. The parties are entitled to one hour in which to appear, after the time fixed in the summons, but are not bound to remain longer than that time unless both parties have appeared, and the justice being present, is engaged in the trial of another cause."

The other facts appear in the opinion of the court.

Reversed and remanded, with directions.

Mr. C. S. Varian, for the appellant.

The office of the writ of certiorari is to correct past error. It is tried by the record and no questions of fact dehors the record can be raised or determined. Hamilton v. Spiers, 2. Utah, 229.

It is only allowed when there is no appeal: Civil Pr. Act. sec. 950, et seq.

In the case at bar there was an appeal: Pr. Act. sec. 854; S. I. M. Association v. Supreme Court, 65 Cal. 500.

It makes no difference that the time for appeal has elapsed: Faut v. Mason, 47 Cal. 8; Bennett v. Wallace, 43 Cal. 25; Millicker v. Hubes, 21 Cal. 167.

The only matter complained of is the failure of the justice to give defendant five full days of twenty-four hours each, in which to answer. All other allegations have no place in a petition for certiorari; they could not be answered nor the facts determined, and therefore cannot be considered.

The Practice Act requires a defendant to appear and answer within five days: Pr. Act, sec. 718.

It seems the hour of appearance must be fixed in the summons: Pr. Act, sec. 723.

Time is computed by excluding the first and including the last day: Pr. Act, sec. 8.

Taking all these provisions together, a harmonious construction may be reached. Any hour on the fifth day may be designated and yet the defendant have the five days given by statute. Any portion of the fifth day is a full legal day, as the law takes no note of fractions of a day: Duffy v. Ogden, 64 Pa. St., 240; Turnpike Road v. Haywood, 10 Wend., 422.

This construction has been ruled: Misch v. Mayhew, 51 Cal. 573.

See code sections involved in this case: Cal. Civil Procedure, sec. 12, sec. 1116.

Even if this construction is wrong, the case is not one for certiorari. At the most the action of the justice was an error or irregularity which did not affect the jurisdiction: Freeman on Judgments, sec. 126; Ballinger v. Tarbell, 16 Iowa 492; Kilsmiller v. Kitcher, 24 Iowa 163.

Mr. James N. Kimball and Mr. A. R. Heywood, for the respondent.

BOREMAN, J. ZANE, C. J., and POWERS, J., concurred.

OPINION

BOREMAN, J.:

The respondent applied to the district court for a writ of certiorari to compel the appellant, a justice of the peace, to certify to that court for review the case of Tarpey and Phillips against said Charles Ducheneau, then in the justice's court. Summons had been served on Ducheneau, the defendant in that action, on the thirtieth day of March, 1885, at nine p. m., in the precinct where the justice held court. The answer of Ducheneau was not filed until the fourth day of April, 1885, although he had sent it to the justice on the third day of April. Judgment was rendered against the defendant, Ducheneau, on the morning of the fourth of April. The answer of the defendant, Ducheneau, was received by the justice, and receipt thereof acknowledged on the same fourth day of April. Respondent claimed that as defendant in that action he had all of the fourth day of April in which to file answer, and that the justice exceeded his jurisdiction in giving judgment before the five days time for answering had expired. The district court granted the writ of certiorari, and upon the hearing adjudged and decreed that the judgment in the justice court be reversed and annulled. From the decision and judgment of the district court, the appellant (House) has brought this case to this court.

In our civil procedure act it is provided that if the defendant in an action before a justice of the peace be served with summons in the precinct in which the action is brought, he must appear and answer the complaint "within five days:" Laws of 1884, p. 288, sec. 718.

It is further provided in said act as follows: "Sec. 8. The time in which any act provided by law is to be done is computed by excluding the first day and including the last day, unless the last day is a holiday, and then it is also excluded."

In counting the five days we are not to count the first day, that is, the thirtieth of March, but are to count the fifth day, that is, the fourth of April. Beginning then with the thirty-first of March as one day, and counting the first four days of April, we have the five days within which the defendant in that action was authorized to answer.

It is sometimes said that when an act is authorized to be done after a fixed number of days' notice, the doing of the act on the last of such days is a compliance with the statute. Such is the ruling in Misch v. Mayhew, 51 Cal. 514, in which the court held that where a "three days' notice" was required of an act proposed to be done, the doing of it on the third day was a compliance with the statute. But if, in such a case, the party had been authorized to do an act "within" three days, we are inclined to think the court would not have excluded it if done at any time on the third day.

It is claimed by appellant that the sections we have quoted together with section 723 of the same act, require the justice to fix in the summons an hour for the appearance of the defendant in any case before him, and that as the justice fixed 10 a. m., of the fifth day for the defendant in said action before him to appear, that the justice, after waiting one hour after that time, was justified in entering default and...