Louisville Ry. Co. v. Wellington

• Decision Date: 03 June 1910
• Parties: LOUISVILLE RY. CO. v. WELLINGTON.
• Court: Kentucky Court of Appeals

128 S.W. 1077

137 Ky. 719

LOUISVILLE RY. CO. v. WELLINGTON.

Court of Appeals of Kentucky.

June 3, 1910

"To be officially reported."

On petition for rehearing. Rehearing granted. Order of reversal vacated and judgment affirmed.

For former opinion, see 126 S.W. 370.

David W. Baird, Fairleigh, Straus & Fairleigh, and Howard B. Lee for appellant.

George Weissinger Smith and C. R. Dinwiddie, for appellee.

CLAY C.

Upon reconsideration, we conclude that we were in error in holding that appellee's failure to object to the filing of the bill of exceptions, or to make a motion to strike out the bill of exceptions, was a waiver of the error of the court in permitting the bill of exceptions to be filed after the expiration of 60 days. This is not a case where the party complaining that the bill of exceptions was not filed in time was present in court when an extension of time was granted or the bill was filed, and made no objection thereto. Walling v. Eggers, etc., 78 S.W. 428, 25 Ky. Law Rep. 1563. Nor is it a case where a party consents or is present, and does not object to an extension, and thus induces his adversary to delay the filing of the bill of exceptions. Hill's Adm'r v. Penn Mutual Life Insurance Co., 120 Ky. 190, 85 S.W. 759, 27 Ky. Law Rep 567; Vertrees v. Head & Matthews, 127 S.W. 523. Appellee was not required to be in court after the expiration of the 60 days; therefore, he was under no legal duty to object to the filing of the bill. Being under no legal duty to object, his failure to object will not constitute a waiver. If, as a matter of fact, the bill of exceptions was not filed within the time allowed, and no extension of the time was granted, the right to file it was lost, and the order made, permitting the bill to be filed after the expiration of 60 days, was void. Bailey v. Villier, 6 Bush, 28; United States Fidelity, etc., Co., v Herzig (Ky.) 124 S.W. 279; Kentucky Land Company v. Reynolds, 58 S.W. 533, 22 Ky. Law Rep. 623; Scott, etc., v. Burrows, 13 Bush, 450.

The next question to be determined is: Was the bill of exceptions filed in time? The motion for a new trial was overruled on March 13, 1909, and appellant given 60 days time within which to file the bill of exceptions. The bill was filed on May 12 1909. Section 1016, Ky. St. (Russell's St. § 2890), provides that within 60 days after the judgment becomes final the party excepting shall, unless further time be given him, prepare his bill of exceptions. Section 342, Civ. Code Prac., provides that an application for a new trial, except for the cause mentioned in section 340, etc., "shall be within three days after the verdict or decision is rendered, unless unavoidably prevented." It will be observed that the language of the statute is substantially the same as that contained in the Code. In construing the Code provision, this court has always held that the day on which the verdict or decision is rendered shall be counted as one of the days. The rule applicable to such cases is well stated in the case of Chiles v. Smith, 13 B. Mon. 460, where the court said: "The rule in regard to the computation of time seems to be that, when the computation is to be made from an act done, the day in which the act was done must be included, because, since there is no fraction in a day, the act relates to the first moment of the day in which it was done. But when the computation is to be from the day itself, and not from the act done, there the day in which the act was done must be excluded. Bellaris v. Hester, 1 Lord Raymond, and the authorities cited." The statute in force at the time that opinion was rendered provided that no writ of error should be sued out "except in three years next after the judgment or final decree, and not thereafter." Following the principle of law above announced, the court held that the day on which the final judgment or decree was entered should be counted. This rule has been approved and adhered to in the following cases: Batman v. Megowan, 1 Metc. 546; Mallory v. Hiles, 4...