Guaranty Trust & Safe-deposit Co. v. Buddington

• Decision Date: 18 April 1891
• Citation: 9 So. 246,27 Fla. 215
• Court: Florida Supreme Court
• Parties: GUARANTY TRUST & SAFE-DEPOSIT CO. et al. v. BUDDINGTON et al.

9 So. 246

27 Fla. 215

GUARANTY TRUST & SAFE-DEPOSIT CO. et al. v. BUDDINGTON et al.

Florida Supreme Court

April 18, 1891

Appeal from circuit court, Clay county; JAMES M. BAKER, Judge.

Syllabus by the Court

SYLLABUS

1. The term 'months,' when used in a statute of this state means calendar months, and not lunar months, unless there is something in the statute which indicates that a contrary meaning was intended.

2. The term 'months,' as used in the act of November 7 1828, (section 8, p. 154, McClel. Dig.,) providing for the publication of orders in chancery causes for absent defendants to appear and plead, and for decrees pro confesso in default thereof, means calendar months.

3. Jurisdiction is not acquired of a non-resident defendant by publishing for a period of four lunar months, but of less than four calendar months, where the statute (section 8 p 154, McClel. Dig.) requires the publication to be made for four months, and there is nothing in it showing that lunar months were intended; and decrees rendered upon such publication of an order to appear and plead are of no effect as to such defendant.

COUNSEL

H. Bisbee, for appellants.

Fleming & daniel, C. P. & J. C. Cooper, and A. W. Cockrell & Son, for appellees.

OPINION

RANEY C.J.

The causes in which the orders of publication were made were consolidated subsequently by an order of the court. Buddington, Wilson & Co. were complainants in one, and Philip J. Canova was the complainant in the other, of them.

The order in the case in which Buddington, Wilson & Co. were complainants was made July 29, 1884, and directs that the Chester Construction Company and the Guaranty Trust & Safe-Deposit Company, bodies corporate organized under the laws of states of the United States other than Florida, and residing and having their principal places of business at stated places in such other states, appear and answer the bill on or before the first Monday of December, 1884, or that the bill shall be taken as confessed, and directs that the order be published once a week for four months in some paper published in Clay county. On the 15th day of January, 1885, an order was made reciting that it appeared to the satisfaction of the court from the affidavit of H. E. Bemis, business manager, that the above order of publication, designating it, had been published in the named paper once each week for four consecutive months, and 'one month having expired of the time thereby limited for appearance and answer,' and that the defendants had failed to appear, adjudges that the bill be taken for confessed, and that the cause be proceeded in ex parte as against the two defendants.

The law under which the order of publication was made is the thirteenth section of the act of November 7, 1828, (section 8, p. 452, Thomp. Dig; section 8, p. 154, McClel. Dig.,) which provides that the order shall be published in any newspaper published in the circuit in which the bill is filed, as follows: 'If the defendant resides in this state, but not in the circuit in which the bill is filed, for two months; if in any other part of the United States, for four months;' and, after stating 'six months' and 'nine months' as the periods of publication where the defendant resides in the West India Islands or in Europe as the case may be, it reads: 'Which publication shall be, when the defendant resides in the United States, once a week; and when he or she resides out of the United States, once a month, during the periods above described.'

The first question to be decided is whether the word 'month,' as used in this statute, means a lunar or a calendar month. Blackstone, after stating that a year is a determinate and well-known period, consisting commonly of 365 days, and in leap-years of 366, says that a 'month' is more ambiguous, there being in common use two ways of calculating months, either as lunar, consisting of 28 days, the supposed revolution of the moon, 13 of which make a year; or as calendar months of unequal length, according to the Julian division in our common almanacs, commencing at the calends of each month, whereof in a year there are only 12. A 'month,' he says, is a lunar month or 28 days, unless otherwise expressed; not only because it is one of uniform period, but because it falls naturally into a quarterly division by weeks. Therefore a lease is only for 48 weeks, but if it be for 'a twelvemonth,' in the singular number, it is good for the whole year. For herein the law recedes from its usual calculation, because the ambiguity between the two methods of computation ceases; it being generally understood that by the space of time called thus, in the singular number, 'a twelvemonth,' is meant the whole year, consisting of the solar revolution. 2 Bl. Comm. pp. 140-142. A 'month,' in temporal matters, except in quare impedit, and, at least, some commercial matters, meant, unless a different meaning was shown to be intended, a lunar month; but in ecclesiastic matters it meant a solar month. Talbot v. Linfield, 1 W. Bl. 450; Lang v. Gale, 1 Maule & S. 111; Titus v. Preston, 1 Strange, 652; Cockell v. Gray, 3 Brod. & B. 186; Bayley, Bills, 238. In Barksdale v. Morgan, 4 Mod. 185, (A. D. 1694,) where, on a contract to pay 'within one month next following,' the decision was that the time should be reckoned a lunar month, the court said: 'In common parlance, the month is taken to be 28 days in all cases except in a quare impedit, and therefore it must be so many days, according to the common and known acceptation of the word.' In Lacon v. Hooper, 6 Term R. 224, (decided in 1795,) where it was held that the word 'month,' if used in a statute without the addition of the word 'calendar,' or anything to show that the legislature meant a calendar month, meant a lunar month, Lord KENYON said that the rule had been so long established that it should not be shaken, but confessed that he wished that the rule as first established by the decisions had been otherwise.

That the rule in England was as stated above, until changed by act of parliament during the present reign, cannot be denied; and it is true that in New York the same rule of construction was followed. Leffingwell v. White, 1 Johns. Cas. 99, (decided in 1791,) held that calendar months were meant in matters of bills of exchange, ( Stackhouse v. Halsey, 3 Johns. Ch. 73;) that a statute as to the advertisement of mortgaged property for sale 'once a week, for six successive months,' meant lunar months, (Jackson v. Clark, 7 Johns. 217; Loring v. Halling, 15 Johns. 119.) In People v. Mayor, etc., 10 Wend. 395, where a statute allowed the owners of land two years from the time of the sale for taxes within which to redeem, and required the municipal authorities to give public notice at least six months before the expiration of that period, for four weeks, it was held that 'months' meant calendar months. 'Now,' says the opinion, 'as calendar time is used by the legislature in fixing the period for redemption, it is a dust and resonable inference that they intended to use it in fixing upon the division or point of time, specifying the notice to be given to the owners to redeem. As the one period, in express terms, is calendar time, and the six months immediately succeed it, and were intended to include a part of it, it should be construed to mean the same; otherwise we must believe the legislature intended to fix the different periods by different calculations of time, in the same breath, and on the same subject, and without any conceivable purpose.' See, also, Snyder v. Warran, 2 Cow. 518; Parsons v. Chamberlin, 4 Wend. 512. In the last case a statute authorized any justice of the peace, who should be removed from office before the collection of the money due on any judgment rendered by him, to issue execution 'at any time within six months after such removal.' No calendar time was mentioned in the statute, 'but,' it was said, 'the days mentioned in the execution correspond merely to calendar time. Executions are to be issued within thirty or ninety days, and they are returnable within similar periods. There is reason, therefore, to believe that calendar time was intended.'

The supreme courts of North Carolina and Delaware have, we find, adopted the English view, (Rives v. Guthrie, 1 Jones, [N. C.] 84; State v. Jacobs, 2 Har. [Del.] 548;) and there is in Georgia a superior court decision to the same effect, (Redmond v. Glover, Dud. [Ga.] 107.)

If the supreme court of any other of the states have adopted or approved the English view, neither our own investigation, nor those of counsel, have discovered the fact. It has, on the contrary, been repudiated by many of the courts for reasons that must commend themselves. Taking, in somewhat alphabetical order, the states in which there have been decisions on the subject, we find that in Alabama, in Bartol v. Calvert, 21 Ala. 42, where the term 'months' was used in a statute in 1843 in prescribing the time for filing claims against insolvent estates, they were held to mean calendar, and not lunar months. Says the opinion, after recognizing the English rule to be as stated above: 'In the United States there is some conflict of decisions, but the current of authority is to the reverse of the English rule. The general rule established by the American cases commends itself strongly by its superior convenience, its correspondence with our business transactions, as well as the received understanding in the community of the meaning of the term, and for these reasons we adopt it in preference to the English rule.' In Gross v. Fowler, 21 Cal. 393, where the term was used in a statute fixing the period for the redemption of property from judicial sales, it was held to mean calendar months. We must...