Hattiesburg Grocery Co. v. Tompkins

• Court: Mississippi Supreme Court
• Writing for the Court: SYKES, J.
• Citation: Hattiesburg Grocery Co. v. Tompkins, 111 Miss. 592, 71 So. 866 (Miss. 1916)
• Decision Date: 05 June 1916
• Docket Number: 18237
• Parties: HATTIESBURG GROCERY CO. v. TOMPKINS

71 So. 866

111 Miss. 592

HATTIESBURG GROCERY CO. v. TOMPKINS

No. 18237

Supreme Court of Mississippi

June 5, 1916

APPEAL from the circuit of Forrest county, HON J. M. ARNOLD, Judge.

Suit by the Hattiesburg Grocery Company against J. C. Tompkins. From an order overruling plaintiff's demurrer to defendant's plea, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Sullivan Conner & Sullivan, for appellant.

John T Haney, for appellee.

OPINION

SYKES, J.

On the 31st day of October, 1907, the appellant, the Hattiesburg Grocery Company, recovered a judgment in the circuit court of Forrest county against J. C. Tompkins, the appellee, in the sum of three hundred and thirty-four dollars and sixty-four cents. On the thirty-first day of October, 1914, the appellant filed this suit on the judgment in the circuit court of Forrest county, the declaration being filed on that day and process issued and served upon the defendant, J. C Tompkins, on that day. The defendant, the appellee here, pleaded the statute of limitation of seven years. Plaintiff demurred to the plea, and the lower court overruled the demurrer, from which judgment appellant prosecutes this appeal.

Section 3103 of the Code of 1906 is as follows:

"All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven years next after the rendition of such judgment or decree, and not after; and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree."

It is the contention of the appellant that the seven-year statute of limitations did not begin to run against this judgment until the day after its rendition. In other words, that in counting the seven years, the court should exclude the first day from the count. It is admitted by the appellee that the judgment was not barred, provided this first day should be excluded. The appellee, however, contends that a proper construction of the statute is to include the day the judgment was rendered.

Section 1606 of the Code of 1906 states how time is computed in certain instances, but not in the one under consideration, and further states:

"And in all other cases when any number of days shall be prescribed, one day shall be excluded and the other included."

While a number of states have statutory enactments providing for the inclusion or exclusion of certain days, we find that Mississippi has none governing this cause. The authorities are somewhat divided on the proposition, but the weight of authority is to the effect that the first day should be excluded from the count. The theory of the law is that the entire time of seven years should elapse before the claim is barred by the statute of limitations. This law should be most favorably construed in favor of keeping the judgment alive for the full period. While the law, as a general rule recognizes no fraction of a day, at the same time, as a matter of common knowledge, we know that courts do not convene before eight or nine o'clock in the day. Therefore, in this case, the judgment certainly could not have been taken until eight or nine hours after October 31, 1907, had begun, and to hold that this day should be counted would be in effect to deprive the appellant here of at least a...