Holly Inv. Co. v. Kansas City, 25287

• Decision Date: 02 February 1970
• Docket Number: No. 25287,25287
• Citation: 450 S.W.2d 451
• Parties: HOLLY INVESTMENT COMPANY, a Missouri Corporation, Plaintiff-Appellant, v. City of KANSAS CITY, Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 451

450 S.W.2d 451

HOLLY INVESTMENT COMPANY, a Missouri Corporation, Plaintiff-Appellant, v. City of KANSAS CITY, Missouri, Defendant-Respondent.

No. 25287.

Kansas City Court of Appeals, Missouri.

Feb. 2, 1970.

Charles C. Shafer, Jr., and Michael C. Boerner, Kansas City, for appellant.

CROSS, Judge.

Plaintiff corporation sued defendant city in magistrate court. The petition alleges that defendant forcibly entered upon plaintiff's property, destroyed a lock, damaged a fence and carelessly and maliciously cut down sixty growing shrubs. Prayer of the petition was for $945.00 actual damages and $1,000.00 punitive damages. Answering, defendant denies generally the allegations of the petition. Affirmatively, defendant alleges that its employees entered the premises to perform a governmental function, i.e., to abate a public nuisance arising from an overgrowth of weeds, bushes and vegetation, detrimental and injurious to the inhabitants of the city, and accomplished that undertaking without damage to the plaintiff. Defendant pleads that it is immune from liability under those circumstances.

Trial was had before the magistrate on February 11, 1969. On that day, after hearing evidence on the contested issues, the magistrate found in favor of defendant and against plaintiff and entered judgment that plaintiff recover nothing in the action. On February 24, 1969, (thirteen calendar days after rendition of the judgment) plaintiff filed, in the magistrate court, a notice of appeal to the circuit court. On March 13, 1969, defendant filed, in the circuit court, its motion to dismiss the appeal on the ground the notice of appeal was not filed within ten days after rendition of judgment. Suggestions in support of and in opposition to the motion to dismiss were submitted by the respective parties, but no evidence or oral argument thereon was heard by the circuit court. On March 24, 1969, the circuit court sustained defendant's motion and dismissed the appeal. From that order plaintiff appeals to this court.

The only point made here by plaintiff is to the effect that the circuit court erred in dismissing plaintiff's appeal from the judgment rendered in the magistrate court. This contention is founded essentially upon the proposition that plaintiff undertook to file a notice of appeal within the time allowed by law, namely on the tenth day after judgment, but could not do so because the magistrate court was closed and the magistrate was not available on that day--thereby creating an 'impossibility of performance'. Plaintiff submits that those circumstances are sufficiently extenuating to excuse the failure to file the notice on the tenth day and justify its filing on the thirteenth day after entry of judgment. Facts hereinafter set out as bearing on this question appear from the pleadings, suggestions filed by the parties, and affidavits thereto attached.

Plaintiff claims that it attempted to file a notice of appeal on Friday, February 21st 1969, same being the tenth calendar day following entry of judgment, but 'found' that the magistrate court and office of its clerk were closed. This latter fact is attested by the affidavit of Barbara Wyatt, a deputy clerk of the magistrate court wherein she states: 'that said Magistrate Court was closed on Friday, February 21, 1969, in honor of George Washington's birthday anniversary; that said Magistrate Court was closed on Saturday, February 22, 1969, the actual date of George Washington's birthday anniversary; that said Magistrate Court was closed on Sunday, February 23, 1969; and that the first day said Magistrate Court was open following Thursday, February 20, 1969, was Monday, February 24, 1969.'

Plaintiff seeks to account for the closing of the magistrate court on February 21st, 1969, by exhibiting a copy of a standing order made by the county court declaring certain days as 'holidays for all full-time county employees', (inclusive of Washington's birthday on February 22nd) and, further declaring that 'If a holiday falls on a Saturday the preceding Friday shall be observed as a holiday.' Plaintiff rationalizes that the foregoing order was promulgated by a 'competent governmental authority', and, that, hence, Friday, February 21st was thereby designated to be a legal holiday within purview of Civil Rule 44.01(a), V.A.M.R. which provides that '* * * in computing any period of time prescribed * * * by any applicable statute, * * * The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a legal holiday.' Therefore, says plaintiff, February 21st should be excluded in computing the time for taking the appeal, and since Monday, February 24th, was the next succeeding day which was neither Sunday or a legally constituted holiday, that day became, and must be considered to be the final day of the period allowed for taking the appeal. We are more impressed by the novelty of this proposition than its merit. It is not conceivable that the running of time allowed by statute for taking appeals is subject to interruption or extension by an order of a county court. Such authority is not even possessed by courts of justice and is expressly withheld from them by the Civil Code and Rules of Civil Procedure. See V.A.M.S. Section 506.060 paragraph 2(2) which specifically provides that courts 'may not enlarge the period for filing a motion for or granting a new trial, or for commencing an action or taking an appeal as provided by this code.'

There is more color of merit in plaintiff's claim of 'impossibility of...