Lloyd v. Grady
| Decision Date | 04 October 1915 |
| Docket Number | No. 11605.,11605. |
| Citation | 180 S.W. 1032 |
| Parties | LLOYD v. GRADY et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.
"Not to be officially published."
Action by John Lloyd against Henry D. Grady and others. From a judgment of involuntary nonsuit, plaintiff appeals. Affirmed.
Charles R. Pence and W. B. Thayer, both of Kansas City, for appellant. Stubbs & Stubbs, of Kansas City, for respondents.
This is an action to enjoin defendant from prosecuting a civil suit which the petition alleges was maliciously begun and prosecuted without probable cause in a justice court in Kansas, and to recover damages sustained by plaintiff from such alleged malicious conduct. At the trial, the action was treated as one for damages, and at the conclusion of the evidence introduced by plaintiff the court gave the jury a peremptory instruction to return a verdict for defendants, whereupon plaintiff took an involuntary nonsuit with leave. This was on February 18, 1914.
The record proper shows that plaintiff's motion to set aside the nonsuit and for a new trial was not filed until Tuesday, February 24, 1914. February 22d fell on Sunday, and under the statutes the following day was a legal holiday. Section 6701, R. S. 1909. Plaintiff had four days, after taking the nonsuit, in which to file his motion for a new trial (section 2025, R. S. 1909), and in computing the time the ensuing Sunday should be excluded (Bank v. Williams, 46 Mo. 17; Porter v. Construction Co., 214 Mo. 1, 112 S. W. 235; Cattell v. Publishing Co., 88 Mo. 356). The statute provides that no court shall be open or transact business on Sunday except for certain specified purposes. Section 3880, R. S. 1909. But there is no statute prohibiting the holding of court upon other statutory holidays, and in the absence thereof such days, not being dies non juridicus, must be included in computing the period for filing motions for a new trial. Stewart v. Brown, 112 Mo. 171, 20 S. W. 451; In re Green, 86 Mo. App. 216; Cartwright v. Telephone Co., 205 Mo. 126, 103 S. W. 982, 12 L. R. A. (N. S.) 1125, 12 Ann. Cas. 249. In this case Monday, February 23d, must be included in the computation, and, so including it, the record shows that the motion was not filed in proper time.
We cannot consider the evidence plaintiff incorporated in the bill of exceptions to impeach the record by showing that the motion, in fact, was filed in time. If the record does...
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...of notice of a school bond election ( Carr v. Wakonda Ind. Consol. School Dist. No. 1 [S. D.] 182 N.W. 626). ¶15 The court, in Lloyd v. Grady (Mo.) 180 S.W. 1032, holds:"But there is no statute prohibiting the holding of court upon other statutory holidays, and in the absence thereof, such ......
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