Rynearson v. Union County

• Decision Date: 13 July 1909
• Parties: RYNEARSON et al. v. UNION COUNTY.
• Court: Oregon Supreme Court

102 P. 785

54 Or. 181

RYNEARSON et al. v. UNION COUNTY.

Supreme Court of Oregon

July 13, 1909

Appeal from Circuit Court, Union County; H.J. Bean, Judge.

Writ of review by Mrs. W. Rynearson and another against Union County to review an order of the county court vacating part of a county road. There was judgment sustaining the writ and setting aside the order, and defendant appeals. Affirmed.

Eugene Ashwill, for respondents.

MOORE C.J.

This is an appeal by the defendant from a judgment that sustained a writ of review and set aside an order of the county court of Union county vacating a part of a county road. The order referred to was annulled on the ground that notices of the application were not posted for the time required therefor though such alleged defect was not assigned as error in the petition for the writ of review. The return to the writ sets forth a copy of the notices informing all persons that application to vacate a part of such highway would be made to such county court at its session then next ensuing; i.e Wednesday, October 3, 1906. The return also shows that proof of publication of such notices was made by the affidavit of Wm. Miller, who, designating the places where the notices were severally posted, stated that he put them up September 3, 1906, being 30 days previous to the presenting of the petition. The statute regulating the mode of securing jurisdiction contains the following provision "When any petition shall be presented for the action of the county court for *** vacating *** any county road, it shall be accompanied by satisfactory proof that notice has been given by advertisement, posted *** thirty days previous to the presentation of said petition to the county court *** at their next session for *** vacating *** such road." Laws Or. 1903, p. 264, § 8. The time within which an act is required to be done shall be computed by excluding the first day and including the last. B. & C. Comp. § 531. Except in special cases when otherwise provided, the general mode thus prescribed for calculating alloted periods is controlling. Grant v. Paddock, 30 Or. 312, 47 P. 712. In application of this rule by excluding September 3, 1906, the day when the notices were posted, it will be ascertained that the 30 days limited for the advertising of the notices did not expire until the last hour of October 3, 1906, the first day of the term of the county court then next ensuing. Boothe v. Scriber, 48 Or. 561, 87 P. 887, 90 P 1002. The notices were therefore put up only 29 days prior to the next session of the county court of Union county, when the statute hereinbefore quoted expressly commands that the notices shall be posted 30 days "previous" to the...