Styles v. DiCkey
| Decision Date | 19 February 1912 |
| Citation | 22 N.D. 515,134 N.W. 702 |
| Parties | STYLES et al. v. DICKEY et al. |
| Court | North Dakota Supreme Court |
Under the record, respondents' motion to strike out the settled statement of the case is denied.
Where the last day of the year from the day of sale on mortgage foreclosure had falls on Sunday, a holiday under the statute, redemption on the Monday following is permitted under section 6736, R. C. 1905.
The day of sale in determining the period within which redemption may be made is excluded.
The owner is entitled to redeem by the payment to the certificate holder of the purchase price with 12 per cent. interest thereon, where no taxes or assessments have been paid by such purchaser.
Such purchaser cannot compel payment by the owner effecting redemption of any other liens either prior or subsequent owned by the purchaser at the time of redemption from the sale.
The owner to effect redemption need not file with the register of deeds nor serve upon the sheriff any written notice of redemption, as must be done where redemption is made by a redemptioner as distinguished from a mortgagor or owner of the equity of redemption.
The parties by their pleadings having both sought an adjudication of all liens and interpleaded the same in this action brought as an action to determine adverse claims and so tried below, this court will administer full equitable relief within the scope of the pleadings and the proof, and it is held: (a) The certificate of redemption was properly issued and canceled the certificate of sale. (b) An accounting is had for payments made by collection of collateral security by mortgagees, and the same is applied in payment on a mortgage involved in the pleadings and proof, and held by respondents. (c) The excess of money in the sheriff's hands over the certificate of sale tendered in full of other claims pursuant to a statement of amount necessary to redeem filed by the certificate holder is ordered applied in payment of said liens with taxable costs then to be deducted.
The quitclaim deed under which redemption was had, though given for a contingent consideration, is valid under the facts of the case, and entitles the successor in interest of the mortgagor to redeem.
Where proposed amendments to the statement of the case were served by mailing on the twenty-first day after the service of the proposed statement, the twentieth day falling on Sunday, and, owing to delay in the mails, they did not reach counsel for appellants till the twenty-third day, and on the twenty-second day he had procured the proposed statement to be settled as by default, and the amendments were promptly returned with a notice that settlement had been had, and the appeal was perfected without delay and appellants' brief and abstract, promptly filed, a motion six months after the statement had been settled, during which time no effort was made by the respondents to cause their proposed amendments to be made a part of the statement, to strike out the statement of the case because of failure to embody the proposed amendments, will be denied.
Appeal from District Court, Pierce County; Burr, Judge.
Action by Asa J. Styles and another, partners as Styles & Koffel, against George H. Dickey and another. From a judgment for plaintiffs, defendants appeal. Reversed and judgment ordered for appellants.A. E. Coger and T. A. Toner, for appellants. Styles & Koffel, for respondents.
[9] The first question presented is on a motion to strike out the statement of the case and appellants' abstract because the settled statement of the case did not have embodied therein the proposed amendments thereto claimed by respondents to have been served upon appellants in time. Service of them was made by mailing on the twenty-first day after service of appellants' proposed statement, the twentieth day falling on Sunday. Owing to the delay in the mails, they did not reach appellants' counsel until the twenty-third day after he had served his proposed statement, and previously, on the twenty-second day, he had procured the proposed statement to be settled as by default. The amendments were promptly returned with a notice that settlement had been had. Appeal was perfected without delay and appellants' brief and abstract, containing altogether 300 printed pages, promptly filed. Thereafter, and six months after the statement had been settled, during which time no effort was had by respondents to cause their proposed amendments to be made a part of the statement, appellants are met by this motion to strike. The good faith of the appellants cannot be questioned; it being plainly apparent from their speedy appeal and their being fully prepared to present their case on the merits as was done at the time of the hearing of the motion. They have incurred several hundred dollars expense during the time respondents have been inactive, and when, on short notice, respondents could have obtained a review of their proposed amendments by the trial court and its determination of whether any of them should have been incorporated as a part of the statement as settled. Besides, the statement was settled without notice of any proposed amendments, and is presumed to have been carefully done so as to truly represent the proceedings had in the lower court. We cannot presume the amendments would have been allowed. No motion is made to remand the record that application may be made to permit such amendments. For all purposes the statement as settled is here controlling. Respondents cannot at this late date expect the court to virtually decide the case regardless of its merits by the granting of the motion after their own acquiescence in the state of the record has placed the appellants in their present predicament. Thompson v. Railway Co., 50 Neb. 330, 70 N. W. 385;Liland v. Tweto, 125 N. W. 1032;Blessett v. Turcotte, 20 N. D. 151, 127 N. W. 505.
[2] The one-year period for redemption from the mortgage foreclosure sale expired on Sunday. On the Monday following the redemption money was paid the sheriff, who issued a certificate of redemption from the sale. This money respondents refused to receive, claiming: (1) That no redemption could be made after the expiration of the period of one year from the sale, and that section 6736, R. C. 1905, did not permit the redemption on the Monday following. (2) That, if redemption was had in time, an insufficient amount to redeem was paid the sheriff.
As to the first contention: The redemption was had under sections 7139 et seq., R. C. 1905, § 7140, providing: “The judgment debtor or redemptioner may redeem the property from the purchaser within one year after the sale on paying the purchaser the amount of his purchase with twelve per cent. interest thereon.” Was the redemption in time? Section 6736 reads: (Italics are ours.) And under section 6710 every Sunday is a holiday. Both these provisions have been in force since territorial days. See section 4749, Compiled Laws 1887, declaring every Sunday a holiday, and section 4805, Compiled Laws 1887, identical with section 6736, R. C. 1905. Both were re-enacted in the 1895 Revised Codes as sections 5124 and 5150 thereof, respectively.
From the authorities it appears that at common law the Sunday of a period not measured in days is included, and performance on the following Monday not permitted. See Haley v. Young, 134 Mass. 365, and People v. Luther, 1 Wend. (N. Y.) 43, both on all fours with the case at bar if it were not for section 6736. The contrary is the rule as to performance where limited by contract; and, where the last day is Sunday under contract obligations, it would be excluded and performance permitted the following day in the absence of a statute regulating such computation of time. In court practice both under rules of court and statutes regulating procedure where the last day for performance falls on Sunday, where the time within which the act is to be done is measured by days, generally performance can be made on the Monday following, but this rule does not apply to statutes construed as mandatory as to time provisions. See Pemberton v. Duryea, 5 Ariz. 8, 43 Pac. 220;Morgan v. Perkins, 94 Ga. 353, 21 S. E. 574;Close v. Twibell (Ind. App.) 92 N. E. 377;Kinney v. Heuring, 42 Ind. App. 263, 85 N. E. 369;Conklin v. Marshalltown, 66 Iowa, 122, 23 N. W. 294;Webb v. Strobach, 143 Mo. App. 459, 127 S. W. 680, applying to a 10-day ordinance provision; Keys v. Keys' Estate, 217 Mo. 48, 116 S. W. 537, applying to filing of claims against an estate; Schnepel v. Mellen, 3 Mont. 118;Cock v. Bunn, 6 Johns. (N. Y.) 326, extending a 20-day habeas corpus limit over Sunday; Broome v. Wellington, 1 Sandf. (N. Y.) 664; Conway Co. v. Mercantile Co., 6 Wyo. 327, 44 Pac. 940, 49 L. R. A. 201;Allen v. Elliot, 67 Ala. 432;Edmundson v. Wragg, 104 Pa. 500, 49 Am. Rep. 390;Barnes v. Eddy, 12 R. I. 25;Thayer v. Felt, 21 Mass. 354; and Salter v. Burt, 20 Wend. (N. Y.) 205, 32 Am. Dec. 530.
The rule must give way to the intent of the statute prescribing the time limit where the intention is obvious that the limit shall be as fixed by such statute. Taylor v. Brown, 147 U. S. 640, 13 Sup. Ct. 549, 37 L. Ed. 313, affirming a Dakota territorial decision in 5 Dak. 335, 40 N. W. 525.
By the very wording of section 6736 it applies only to acts provided by law to be done. The statute is plain and unambiguous. With the holiday exception omitted therefrom it would be committing an assault and battery on the statute to hold it not to be a general rule applicable according to its terms, to the end that “the time in which any act provided by law is to be done is computed by excluding the first day and...
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