Stevenson v. Donnelly

• Decision Date: 21 May 1915
• Citation: 221 Mass. 161,108 N.E. 926
• Parties: STEVENSON v. DONNELLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 161

108 N.E. 926

STEVENSON v. DONNELLY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 21, 1915

COUNSEL

John F. Daly, of Boston, for plaintiff.

John M Maloney, of Boston, for defendant.

OPINION

RUGG C.J.

This is an action begun in the municipal court of the city of Boston where judgment was entered in favor of the defendant. A doubt is raised as to the jurisdiction of the superior court founded on the ground that the appeal from the judgment of the municipal court was not seasonably prosecuted. That judgment was entered at 10 o'clock in the forenoon of Friday, the 3d day of February, 1911, the hour and day of the week required by R. L. c. 177, § 2. The appeal was perfected at 11:15 o'clock in the forenoon of February 10th, which was the seventh day counting Sunday, and the sixth day excluding Sunday, after the entry of the judgment. It is provided by R. L. c. 173, § 97, as amended by St. 1910, c 534, § 1, that:

'A party who is aggrieved by the judgment of a * * * municipal court * * * in a civil action * * * [with exceptions not here material] * * * may, * * * within six days after the entry of the judgment, appeal therefrom to the superior court.'

The time provided for the filing of the appeal bond by the two following sections is 'within six days after the entry of judgment.' The first point to be determined is whether Sunday is excluded from or included within the six-day period limited by the statute. It was said in Cunningham v. Mahan, 112 Mass. 58, 59:

'When a statute fixes a limitation of time within which a particular act may or may not be done, if the time limited exceeds a week, Sunday is included in the computation; but if it is less than a week, Sunday is excluded. This is the established rule of interpretation in this state.'

This statement of the law has been approved in Haley v. Young, 134 Mass. 365, Cowley v. McLaughlin, 141 Mass. 181, 4 N.E. 821, and Tuttle v. Boston, 215 Mass. 57, 60, 102 N.E. 350. It was a renewed declaration of the law of earlier cases. In Cooley v. Cook, 125 Mass. 406, where the question related to a period of four months, it was said:

'Whenever the time limited by a statute for a particular purpose is such as must necessarily include one or more Sundays, Sundays are to be included in the computation, even if the last day of the time limited happens to fall on Sunday, unless they are expressly excluded, or the intention of the Legislature to exclude them appears manifest.'

If that test be applied literally to the instant statute, the appeal would not be seasonable, for the reason that a Sunday must always be included in a period of six days beginning on Friday, or possibly on Thursday. R. L. c. 177, § 2. The statement of the law in Cooley v. Cook was not phrased with a view to any such question as is here presented, but with reference to the computation of a period within which several Sundays of necessity would be included. That case discloses no purpose to change the rule stated in Cunningham v. Mahan. It is a simple rule, easy of application and as free from the possibility of misapprehension or mistake as any such rule well can be, to hold that in computing any period of time less than a week, Sunday is to be excluded; and that in computing any period of time of a week or more, Sunday is to be included. This is the law as it has been commonly understood and practiced in this commonwealth for many years. It is a good practical rule. There is no reason disclosed on this record why it should not be applied in the case at bar. Although in this instance the effect of the statute in prescribing six days is the same as if a period of seven days had been limited, that is a mere accident and does not affect the soundness of the rule. As Sunday is to be excluded in reckoning the period, the appeal was perfected on the sixth secular day after the judgment of the municipal court.

As the appeal was not perfected until after eleven o'clock on the sixth day after the entry of judgment, the further question arises whether the period limited includes entire days or only a period of six times 24 hours measured on secular days from 10 o'clock in the forenoon, the hour when the judgment is entered. It has been said: 'The law knows no division of a day.' Portland Bank v. Maine Bank, 11 Mass. 204. That is by no means a hard and fast rule, and fractions of a day will be regarded when it is necessary in order to do justice between the parties. Finneran v. Graham, 198 Mass. 385, 84 N.E. 473, 15 Ann. Cas. 291; Munnss v. American Agricultural & Chemical Corp., 216 Mass. 423, 103 N.E. 859. Nevertheless, that fractions of a day will not be considered and the word 'day' or 'days' ordinarily will be construed to mean a whole day, is a convenient general statement to apply when there is nothing in the particular circumstances to indicate that some other meaning was intended by the parties or by the Legislature. It perhaps would be possible to say that, inasmuch as R. L. c. 173, §§ 97, 98, and 99 required the appeal...