McNutt v. State
| Decision Date | 03 March 1924 |
| Docket Number | (Nos. 216, 247.) |
| Citation | 259 S.W. 1 |
| Parties | McNUTT v. STATE. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Pulaski County; Jno. W. Wade, Judge.
W. B. McNutt was convicted of a misdemeanor, and appeals. On motion to require clerk to file transcript. Clerk directed to allow filing of transcript.
Section 3423 of Crawford & Moses' Digest provides that in misdemeanor cases the appeal shall be prayed during the term at which the judgment was rendered and shall be granted upon the condition that the record is lodged in the clerk's office of the Supreme Court within 60 days after the judgment.
The sole question is, if the last day of the 60 days given by the statute falls on Sunday, whether a party may file a transcript in this court on the following Monday.
The Attorney General quotes from 26 R. C. L. p. 750, that the great weight of authority is that, in computing the time within which an act required by any statute must be done, if the last day falls on Sunday, it cannot be excluded and the act done on the Monday following, unless there is some statute providing that the Sunday should be excluded from the computation or the intention of the Legislature to exclude it is manifest. Many decisions bearing on the question under varying statutes are cited in the notes to 7 Ann. Cas. 325, and 20 Ann. Cas. 1318.
On the other hand, it is the contention of counsel for appellant that both at common law and by statute, when the last day of a period in which an act is to be done falls on Sunday, that day is excluded, and the act may be done on the next succeeding day. See 38 Cyc 331; 28 Am. & Eng. Enc. Law (2d Ed. 224); and Endlich on Interpretation of Statutes, § 393.
Many states have passed statutes to this effect, and it is claimed by counsel for the appellant that these statutes are merely declaratory of the common law. Be that as it may, no rule has been adopted on the subject in this state, and the question is whether a rigorous or a liberal rule should be applied. The right of appeal is given in all cases by our Constitution, and the majority of the court is of the opinion that statutes regulating it should be construed so as to facilitate rather than impede its exercise. The statute provides that the transcript may be lodged in the clerk's office of the Supreme Court within 60 days after the judgment. Both at common law and by statute in this state, Sunday is not a juridical day, and the performance of labor and the transaction of business is prohibited by statute.
The Legislature will be presumed to have considered that Sunday is dies non in regard to judicial proceedings, and, in fixing a short time for appealing, to have considered that in the computation of the time when the last day for filing the transcript falls on Sunday, it may be done on the next day. Some courts have expressly held that whenever by rule of the court or an act of the Legislature a given number of days is allowed to do an act, or it is said that an act may be done within a given number of days, the day in which the rule is taken or the decision is made is excluded, and if one or more Sundays occur within the time, they are counted unless the last day falls on Sunday, in which case, the act may be done on the next day. Goswiler's Estate, 3 Pen. & W. (Pa.) 200; Lutz's Appeal, 124 Pa. 273, 16 Atl. 858; Cressey v. Parks, 75 Me. 387, 46 Am. Rep. 406; Estate of Rose, 63 Cal. 346; People v. Scanlan, 265 Ill. 609, 107 N. E. 149; Barnes v. Eddy, 12 R. I. 25; West v. West (R. I.) 46 Atl. 44; and Monroe Cattle Co. v. Becker, 147 U. S. 47, 13 Sup. Ct. 217, 37 L. Ed. 72.
This rule is reasonable, and is especially so when we consider the numerous decisions of this court in which the court has sustained short statutes of limitations within which property owners may appeal to the courts, not only against discriminations and inequalities in the assessment of benefits against their property, but even against assessments made upon illegal principles of law. Statutes of 20 days within which to file such attack on the assessments have been sustained in numerous cases, and statutes requiring the attack to be made within 10 days have also been sustained. House v. Rd. Imp. Dist. No. 2, 158 Ark. 330, 251 S. W. 12, and Road Imp. Dists. 1, 2, and 3 v. Crary, 151 Ark. 484, 237 S. W. 444.
It was known to the Legislature, in passing statutes providing that the property owner should contest the assessment of benefits against his property within these short periods, that one or more Sundays might intervene during the period, and this fact was also known to the court in deciding whether the number of days allowed was reasonable.
We think that it was the intention of the Legislature to allow 60 days in all cases within which to perfect the appeal, that it was their intention to exclude Sunday when the last day of the period fell on that day, and to allow the transcript to be filed on the following day.
Therefore the clerk is directed to allow the transcript to be filed.
An appeal in a misdemeanor case is granted on condition that the transcript be filed in this court within 60 days, and if the condition is not performed no jurisdiction is acquired by this court, and the court had no power to extend the time. Smith v. State, 48 Ark. 148, 2 S. W. 661; Bromley v. State, 97 Ark. 116, 133 S. W. 813.
In many of the states there is a statute in force which provides that in computing the time within which an act is to be done, if the last day be Sunday, it shall be excluded, but there is no such statute in this state. In those states effect is given to the statute by decisions holding that where the last day falls on Sunday the act may be performed on the following day. The prevailing rule in states where there is no statute excluding Sunday from the computation is stated as follows in 26 R. C. L. 750:
"The great weight of authority is that in computing the time within which an act required by any statute must be done, if the last day falls on a Sunday, it cannot be excluded and the act done on the Monday following, unless there is some statute providing that the Sunday should be excluded from the computation, or the intention of the Legislature to exclude it is manifest."
In a case note to Simmons v. Hanne, 50 Fla. 267, 39 South. 77 (7 Ann. Cas. 322), the rule is stated substantially the same as above:
"The decision in the reported case to the effect that in computing the time within which an act required by any statute must be done, if the last day falls on a Sunday, it cannot be excluded, and the act done on the Monday following, unless there is some statute providing that the Sunday shall be excluded from the computation, or...
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