Lowry v. Stotts

• Citation: 138 Ky. 251,127 S.W. 789
• Parties: LOWRY et al. v. STOTTS et al.
• Decision Date: 05 May 1910
• Court: Kentucky Court of Appeals

127 S.W. 789

138 Ky. 251

LOWRY et al. v. STOTTS et al.

Court of Appeals of Kentucky.

May 5, 1910

Appeal from Circuit Court, Jessamine County.

"To be officially reported."

Petition by W. D. Lowry and others against William Stotts and others. From a judgment dismissing the petition, plaintiffs appeal. Affirmed.

Lewis L. Walker, for appellants.

N. L Bronaugh, for appellees.

HOBSON J.

At the November election, 1909, appellants and appellees were candidates for councilmen in the Third ward of the city of Nicholasville. On November 5th the board of election commissioners canvassed the returns and issued a certificate of election to the appellees. On the evening of November 14th the appellants filed with the deputy circuit clerk a petition to contest the election, and asked him then to issue process on it. The day being Sunday, he declined to do so. They applied to him on the following Monday again to issue the process, and he would not issue it. The clerk was away from home. He returned on the 27th, and marked the petition as filed of that date, and issued the process. When the case was called, it was dismissed by the circuit court because brought too late. The plaintiff's appeal.

The only question we deem it necessary to determine is whether the petition was in time when it was delivered to the clerk on the 14th, or whether, if the process had been issued on the 15th, it would have been on time. The statute regulating these contests provides as follows as to the filing of the petition: "Such petition shall be filed and process issued in the case of an officer elective by the voters of the whole state or any district comprising more than one county, within thirty days after the final action of the board of canvassers, and in case of any other office, within ten days after such action; and shall state the grounds of the contest relied on, and no other grounds shall afterwards be relied on." Ky. St. § 1596a, subsec. 12. Under this statute, it was necessary that the petition should be filed and the process issued within 10 days after the final action of the board of canvassers. The final action of the board of canvassers was had on November 5th, and the question we are to determine is when the 10 days after their final action expired. In Chiles v. Smith, 13 B. Mon. 460, the rule was thus stated: "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."

In the case at bar the time was to be computed from the final action of the county commissioners, and therefore, under the rule November 5th must be counted. The 10 days would therefore expire on November 14th. Batman v. McGowan, 1 Metc. 533; Long v. Hughes, I Duv. 387: Newton v Ogden, 126 Ky. 101, 102 S.W. 865, 31 Ky. Law Rep. 549 and cases cited. But November 14th being Sunday, it is insisted that the time did not expire then, and that the plaintiff had the following day also. The general rule is that if the time within which an act may be done exceeds a week, Sunday is included, but, if it is less than a week Sunday is not included. We adopted this rule in Geneva Cooperage Company v. Brown, 124 Ky. 16, 98 S.W. 279, 30 Ky. Law Rep. 272, 124 Am.St.Rep. 388. We have also held that, where the last day for paying an assessment fell on Thanks giving day, a tender of it on the next day was invalid. National Mutual Benefit Association v. Miller, 85 Ky. 88, 2 S.W. 900, 8 Ky. Law Rep. 900. The time for filing the petition in these cases being fixed by statute, to exclude Sunday where it falls on the last day would be to extend the time allowed by the statute. This we cannot do. Peacock v. Reg., 93 E. C. L. 264; Ex parte Simpkins, 105 E. C. L. 392; Johnson v. Meyers, 54 F. 417, 4 C.C.A. 399; Dale v. Lavigne, 31 Mich. 149; Ex parte Dodge,...