Mississippi Cent. R. Co. v. Aultman

• Decision Date: 08 April 1935
• Docket Number: 31636
• Citation: 173 Miss. 622,160 So. 737
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI CENT. R. Co. et al. v. AULTMAN et al

160 So. 737

173 Miss. 622

MISSISSIPPI CENT. R. Co. et al. v. AULTMAN et al

No. 31636

Supreme Court of Mississippi

April 8, 1935

Division B

Suggestion Of Error Overruled May 20, 1935.

APPEAL from circuit court of Jefferson Davis county HON. HARVEY MCGEHEE, Judge.

Action by H. B. Aultman and others against the Mississippi Central Railroad Company, one Evans, and another. From a judgment in favor of plaintiffs, named defendants appeal. Affirmed.

Affirmed.

Brady, Dean & Hobbs, of Brookhaven, for appellants.

This cause was not properly triable at the term to which it was made returnable and the judgment must be, for that reason reversed and the cause remanded.

The writ of summons from the circuit court, as against this appellant, was returnable on the "Third Monday of August, A. D. 1934, the same being the 20th day of said month." The writ was served upon it on the 21st day of July, 1934.

Section 575, Code of 1930.

Continuance was a statutory right under Section 575, Code of 1930.

23 C. J. 109-110; Maury et al. v. Commercial Bank, 5 S. & M. 41.

Sections 474 and 575, Code of 1930, stand together.

Appellees submit that the words employed in Sections 474 and 575 should be given their usual, ordinary and popular signification.

Green v. Weller, 32 Miss. 650; Koch v. Bridges, 45 Miss. 247; Yerger v. State, 91 Miss. 802, 45 So. 849; Hamner v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521; Roseberry v. Norsworthy, 135 Miss. 845, 100 So. 514; Robertson v. Texas Oil Co., 141 Miss. 356, 106 So. 449; Warburton-Beacham Supply Co. v. Jackson, 151 Miss. 503, 118 So. 606; Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450, 62 A.L.R. 999; Peeler v. Peeler, 68 Miss. 141, 8 So. 392.

Section 575, Code of 1930, is a part of the chapter on circuit courts. It is not a process statute. It was not exacted for that purpose. It deals only with questions of pleading, issues of fact, and trial. Sections 474 and 575, Code of 1930, stand upon their own combined independent footing, to the exclusion of every other chapter and of every other statute, forming a part of Chapter 12, entitled "Circuit Courts."

In so far as the motion for a continuance is concerned, the question turns upon the meaning of the words--"has been personally served with process for thirty days before the return-day."

26 C. J. 791.

The statutory phrase--"for thirty days before the return-day"--means to the extent, number, quantity, and amount of, and during, through, throughout, and during the continuance of, thirty days prior to or preceding the return-day, and not including the return-day.

17 R. C. L. 1131; Carter v. Henry, 87 Miss. 411, 39 So. 690; Pannell v. Glidewell, 146 Miss. 565, 111 So. 571.

In the absence of any statutory provision governing the computation of time, the authorities are uniform that, where an act is required to be done a certain number of days or weeks before a certain other day upon which another act is to be done, the day upon which the first act is done is to be excluded from the computation, and the hole number of days or weeks must intervene before the day fixed for doing the second act.

Ward v. Walters, 63 Wis. 44, 22 N.W. 844; 46 C. J. 1099; 59 C. J. 1001-2-3; Green v. Weller, 22 Miss. 650; Millsaps College v. Jackson, 136 Miss. 795, 101 So. 574; Coker v. Wilkinson, 142 Miss. 1, 106 So. 886; Street v. Commercial Credit Co., 281 P. 46, 67 A.L.R. 1549.

Section 575, Code of 1930, makes it a condition precedent to a trial on the merits, without a defendant's consent, that "the defendant has been personally served with process for thirty days before the return day."

Nixon v. State, 2 S. & M. 497, 41 Am. Dec. 601.

The requirement of thirty whole days stands as a unit, stands as an entirety. While each day contributes its part toward making up the whole, it is the whole that controls, and the whole that is required.

O'Quinn v. State, 131 Miss. 511, 95 So. 513; Carter v. Henry, 87 Miss. 411, 39 So. 690, 6 Ann. Cas. 715; 17 C. J. 1131; Nixon v. State, 2 S. & M. 497, 41 Am. Dec. 601; H. & H. 667, sec. 15; Winchester v. State, 163 Miss. 462, 142 So. 454.

There is no statutory rule to be applied in addition to the rule established by Sections 474 and 575, Code of 1930.

Before appellant, without its consent, could be compelled to try this case on the merits, the law required the existence of a fact, not the application of a "legal fiction." The fact required was that appellant must be "personally served with process for thirty days before the return-day," and such fact did not exist.

25 C. J. 1086.

To determine the legislative intent in the case of ambiguity, resort may be had to the history of the statute.

59 C. J. 958-60, 1005-7 and 1017; Hamner v. Yazoo Delta Lbr. Co., 100 Miss. 349, 56 So. 466; State v. Traylor, 100 Miss. 544, 56 So. 521; Robertson v. Texas Oil CO., 141 Miss. 356, 106 So. 449.

Section 722, Chapter 21, Code 1892, that is to say, Chapter 142, Laws of 1904, became Section 783, Chapter 20, Code 1906, at page 343, and subsequently became Section 566, Chapter 9, Code 1917, at page 527, and subsequently became Section 575, Chapter 12, Code 1930, in each instance being a part of the chapter on Circuit Courts. In so far as the point in question is concerned, there has been no change in the statute since the enactment of Chapter 142, Laws of 1904.

In view of the history of Sections 474 and 575, Code 1930, it will be observed that these statutes have stood upon their own combined independent footing back through preceding codes of Mississippi.

Oglesby v. Stribling, 67 Miss. 666, 7 So. 463.

Section 1397 has no application to sections 474 and 575, Code 1930.

Appellant complied with Section 6125 of the Code of 1930, (1) by ringing the bell as therein required, or (2) by blowing whistle for part, and ringing bell for remainder, of three hundred-yard distance.

One witness who hears the ringing of a bell is worth more than the testimony of a dozen witnesses who did not hear it unless in some manner their attention had been especially called to it. The witness who heard the bell either tells the truth, or he tells a deliberate and wilful falsehood, while the witness who did not hear the bell may be and is probably truthful. The bell may be rung or the whistle blown without attracting the attention of persons who are familiar with such sounds.

Urias v. Railroad Co., 152 Pa. 326, 25 A. 566; Horandt v. Railroad Co., 73 A. 93; Rich v. Ry. Co., 149 F. 79, 78 C. C. A. 663; Johnson case, 157 Miss. 266, 126 So. 827.

Independently of giving signals and, only for the sake of argument, admitting that they may not have been given in strict compliance with the statute, such failure did not proximately cause the accident for the reasons that:

1. The noises of and in the bus prevented train signals from being heard, and negligence cannot be predicated on not doing a thing which would have been utterly useless, if done;

2. When the driver of the school bus stopped and looked for the train, the train was in sight, he had every notice which signals would have given him and cannot be heard to say that he did not see the train and that signals were not given.

Railroad Co. v. Kellam, 83 Va. 851, 3 S.E. 703; Perkins v. Railroad Co., 57 Hun. 586, 10 N.Y.S. 356; Siegel v. Railroad Co., 79 Wis. 404, 48 N.W. 488; Albrecht v. Railroad Co., 108 Wis. 530, 84 N.W. 882; Hook v Railroad Co., 162 Mo. 569, 63 S.W. 630; Moore on Facts, sec. 280; Peters v. Ry. Co., 135 Ala. 533, 33 So. 332; Ry. Co. v. Williams, 137 S.W. 828; Railroad Co. v. Batsel, 140 S.W. 726; Zibbell v. Sou. Pac. Co., 160 Cal. 237, 116 P. 513; Westerkamp v. Railroad Co., 41 Colo. 290, 92 P. 687; Harten v. Railroad Co., 18 App. Cas. 260; Johnson v. Railroad Co., 61 Ill.App. 522; Railroad Co. v. Kirby, 86 Ill.App. 57; Railroad Co. v. Gallagher, 109 Ill.App. 67; Railway Co. v. DeFrietas, 109 Ill.App. 104; Railroad Co. v. Vremeister, 112 Ill.App. 346; Railway Co. v. Hirsch, 132 Ill.App. 656; Railroad Co. v. Fraze, 150 Ind. 576, 65 Am. St. Rep. 377, 50 N.E. 576; Railway Co. v. Baker, 104 S.W. 1182; Artz v. Railroad Co., 34 Ia. 153; Payne v. Railroad Co., 39 Ia. 523; Bloomfield v. Railway Co., 74 Ia. 607, 38 N.W. 431; Young v. Railway Co., 57 Kan. 134, 45 P. 583; Smith v. Railroad Co., 87 Me. 339, 32 A. 967; Blumenthal v. Railroad Co., 97 Me. 255, 54 A. 747; Day v. B. & M. R. R., 97 Me. 528, 55 A. 420; McCarthy v. Railroad Co., 90 A. 490, 54 L.R.A. (N.S.) 140; N. C. Ry. Co. v. Mediary, 86 Md. 168, 37 A. 796, 3 Am. Neg. Rep. 411; Railway Co. v. Beasley, 117 Md. 270, 83 A. 157; Carlson v. Railway Co., 296 Minn. 504, 105 N.W. 555, 113 Am. St. Rep. 655, 4 L.R.A. (N.S.), 349; State v. Dettner, 27 S.W. 1117; Hook v. Railway Co., 162 Mo. 569, 63 S.W. 360; State v. Gurley, 70 S.W. 875; Barrie v. Co., 102 Mo.App. 87, 76 S.W. 706; Porter v. Railway Co., 199 Mo.App. 82, 97 S.W. 880; Schaub v. Railway Co., 133 Mo.App. 444, 113 S.W. 1163; Waggoner v. Railroad Co., 152 Mo.App. 173, 133 S.W. 68; Dolfini v. Railroad Co., 178 N.Y. 1, 70 N.E. 68; Fiddler v. R. R. Co., 64 A.D. 95, 71 N.Y.S. 721; Madigan v. Railroad Co., 74 N.Y.S. 143, 68 A.D. 123; Swartz v. Railroad Co., 81 A.D. 402, 80 N.Y.S. 906, 177 N.Y. 529, 69 N.E. 1151; McKinley v. Railway Co., 86 N.Y.S. 461, 91 A.D. 153; Stapp v. Railway Co., 29 N.Y.S. 1008, 80 Hun. 178; Belch v. Railroad Co., 36 N.Y.S. 56, 90 Hun. 477; Montenes v. Railway Co., 78 N.Y.S. 1059, 77 A.D. 493; Golden v. Railway Co., 98 N.Y.S. 848, 49 Misc. 521; O'Brien v. Railroad Co., 113 N.Y.S. 329, 129 A.D. 288; Railway Co. v. Elliott, 28 O. St. 340; Marland v. Railroad Co., 123 Pa. St. 487, 16 A. 624, 10 Am. St. Rep. 541; Meyers v. Railroad Co., 150 Pa. 386, 24 A. 747; Urias v. Railroad Co., ...