Edmundson v. Wragg

• Decision Date: 07 January 1884
• Citation: 104 Pa. 500
• Parties: Edmundson v. Wragg.
• Court: Pennsylvania Supreme Court

104 Pa. 500

Edmundson v. Wragg.

Supreme Court of Pennsylvania.

January 7, 1884

November 3, 1883

1. Where an Act of Assembly requires a thing to be done within a certain time from a prior date, and deprives the party of a right for omitting it, the day from which the count is to be made should be excluded in computing the time within which the act may be done.

2. Where, in such case, the last day on which said act might be done falls on Sunday, that day, being dies non-juridicus, is also to be excluded from the computation, and the party has the whole of the following day on which to perform such act.

3. The Act of May 28th 1858 provides that no action to recover back excess of interest voluntarily paid in excess of six per cent. shall be sustained, unless commenced " within six months from and after the time of such payment." A payment of interest in excess of six per cent. was made May 13th 1881. The six months expired November 13th 1881, but that day being Sunday, the plaintiff began his action on the following day: Held, that the action was commenced in time, within the limitation of said Act.

4. The Act of June 20th 1883 (P. L. 136), enacting the rule for computation of time substantially as above stated, is not retrospective.

5. The above-stated rule does not apply to negotiable paper.

Before MERCUR, C. J., GORDON, PAXSON, STERRETT, GREEN and CLARK, JJ.

TRUNKEY J., absent.

ERROR to the Court of Common Pleas No. 2 of Allegheny county: Of October and November Term 1883, No. 166.

Case stated, between John F. Edmundson, plaintiff, and George Wragg, Jr., defendant, setting forth, inter alia, that on May 13th 1881, George Wragg, Jr., the assignee of a certain bond and mortgage of $2,500, theretofore executed by said John F Edmundson, acknowledged payment and satisfaction in full on record of said mortgage debt, together with the interest thereon, " there having been paid to the said George Wragg, Jr., voluntarily, $529.96, interest in excess of the legal interest as established by law, to wit, in excess of six per centum interest." That the plaintiff began an action to recover back such excess of interest on Monday November 14th 1881, to which the defendant filed an affidavit of defence, setting up that said suit had not been commenced within six months from and after the time of such payment, as provided by the Act of May 28th 1858, and the plaintiff's action was thereby barred. The case stated provided that " If the court be of the opinion that the plaintiff commenced his said action within the time required by law then judgment to be entered for the plaintiff therein, but if not, then judgment to be entered for the defendant. The costs to follow the judgment, and either party reserving the right to sue out a writ of error therein."

The court, after argument, in an opinion filed by EWING, P. J., held that the six months from the date of payment expired on November 13th 1881, and the fact that that day was Sunday did not extend the plaintiff's time for bringing suit to the 14th of November.

The court therefore entered judgment on the case stated for the defendant. The plaintiff thereupon took this writ of error, assigning for error the said judgment.

H. S. Floyd, for the plaintiff in error.

E. P. Jones, for the defendant in error.

Mr Justice STERRETT delivered the opinion of the court, January 7th 1884.

The Act of May 28th 1858, authorizing the recovery of interest voluntarily paid in excess of six per cent., provides that " no action to recover back any such excess shall be sustained in any court of this Commonwealth unless the same shall have been commenced within six months from and after the time of such payment." This suit was brought on Monday, November 14th 1881, to recover $529.96, excess of interest, included in payment made on the 13th of May preceding; and the only question presented by the record is whether the suit was commenced within the six months limited by the Act. In computing the time, according to the...