Siegelschiffer v. Penn. Mut. Life Ins. Co.

• Decision Date: 19 December 1917
• Parties: SIEGELSCHIFFER v. PENN MUT. LIFE INS. CO. et al.
• Court: U.S. Court of Appeals — Second Circuit

248 F. 226

SIEGELSCHIFFER v. PENN MUT. LIFE INS. CO. et al.

United States Court of Appeals, Second Circuit.

December 19, 1917

Bergoffen & Michaels, of New York City, for plaintiff in error.

Winthrop & Stimson, of New York City, for defendants in error.

Before ROGERS and HOUGH, Circuit Judges, and LEARNED HAND, District judge.

ROGERS Circuit Judge.

The question presented involves the construction to be placed upon that part of Act Cong. March 3, 1891, c. 517, Sec. 11 which fixes the time within which appeals and writs of error may be taken or sued out, and which reads as follows:

'No appeal or writ of error by which any order, judgment, or decree may be reviewed in the Circuit Court of Appeals under the provisions of this act shall be taken or sued out except within six months after the entry of the order, judgment, or decree sought to be reviewed. ' U.S. Compiled Statutes Ann. 1916, vol. 3, p. 3266, Sec 1647.

The writ of error is the writ of the appellate court addressed to the judge of the trial court directing him to send the record and proceedings in the case to the appellate court. In Brooks v. Norris (1850) 11 How. 204, 13 L.Ed. 665, it was decided, Chief Justice Taney speaking for the court, that:

'The writ of error is not brought, in the legal meaning of the term, until it is filed in the court which rendered the judgment. It is the filing of the writ that removes the record from the inferior to the appellate court, and the period of limitation prescribed by the act of Congress must be calculated accordingly. The day on which the writ may have been issued by the clerk or the day on which it is tested are not material in deciding the question.'

This case is cited with approval in Mussina v. Cavazos, 6 Wall. 355, 18 L.Ed. 810, and in Scarborough v. Pargoud, 108 U.S. 567, 2 Sup.Ct. 877, 27 L.Ed. 824.

It is conceded that courts have no power to enlarge the statutory time to sue out a writ of error. It is also true that they have no power to shorten the statutory time. When the last day of the six months statutory period falls on Sunday, does the period expire on Saturday or on the following Monday? It is agreed, of course, that the writ cannot be sued out on Sunday, which is dies non juridicus. The plaintiff in error insists that the writ was sued out in time, and he relies on the principle applied in Street v. U.S., 133 U.S. 299, 10 Sup.Ct. 309, 33 L.Ed. 631. In that case the statute authorized the President to fill vacancies in the army then existing or which might occur prior to the 1st day of January then next. The 1st day of January fell on Sunday, and the Supreme Court held that in the exercise of the power thus conferred an order made on the 2d day of January was valid. The opinion, written for the court by Mr. Justice Brewer, stated that:

'A power that may be exercised up to and including a given day of the month may generally, when that day happens to be Sunday, be exercised on the succeeding day.'

It is urged upon us that Congress, in enacting the law of March 3, 1891, and fixing a six-months limitation for appeals, presumably knew of the rule of statutory construction applied in the above case, and intended that the statute should be interpreted accordingly.

The early common-law rule adopted in England and in some early decisions in the United States was that, in the absence of anything indicating a different intention, a month in law meant a lunar month, or 28 days. This rule was abolished by statute in England in 1850. In this country, in some of the states, statutes have been enacted defining the meaning of the term, and now the word 'month' means a calendar month, either because of a statute or by judicial decision. Guaranty Trust & Safe Deposit Company v. Green Cove Springs & Melrose R. Co., 139 U.S. 137, 11 Sup.Ct. 512, 35 L.Ed. 116.

It is also, we take it, settled by the weight of authority that the time within which an act is to be done is to be computed by excluding the first day and including the last. Sheets v. Selden, 2 Wall. 177, 17 L.Ed. 822; Eliot National Bank v. Gill (D.C.) 210 F. 933, 940. And when the last day falls on Sunday it is the general rule, made so by statute in many jurisdictions, that the act to be done may be lawfully done on the day following. Monroe Cattle Co. v. Becker, 147 U.S. 47, 55, 13 Sup.Ct. 217, 37 L.Ed. 72.

In 38 Cyc. 330, it is said that, although the decisions are not entirely uniform, the above rule has also been held to apply to pleading, serving process, putting in special bail, the service, publication, and operation of notice, returning an execution, suing out a writ of scire facias to revive a judgment, preparing and serving a statement on motion for a new trial, the filing of a bill of exceptions, transcript, brief, appeal bond, or undertaking, and the taking of other steps to perfect an appeal, redeeming lands from a tax or other judicial sale, as well as to the time within which a justice of the peace must render judgment after submission of the case. The rule has, however, been held not to apply in computing the time limited by statute for the commencement of an action, the time for refiling a chattel mortgage, or filing and enforcing a mechanic's lien, or filing a motion to set aside a default; and where the day fixed for the payment of commercial paper falls on Sunday, the weight of authority is in favor of the view that the preceding day is the day of maturity, at least where the paper is entitled to grace. In 28 Am. & Eng. Encyc. of Law, p. 224, it is said that at common law:

'When Sunday is the last day for the performance of an act, it is usually excluded, and performance on Monday allowed. The contrary, however, has been held.'

And in 20 Encyc.Pl. & Pr.p. 1204, it is said:

'The authorities also differ as to the proper practice where the period prescribed for doing an act expires on Sunday, though the weight of authority seems to be that the act may be done on the following day.'

The question now presented to the court has been passed upon by the Circuit Court of Appeals in the Eighth and Ninth Circuits. And in both circuits it has been held that, when the last day of the six months within which an...