Styles v. Dickey

• Decision Date: 12 January 1912
• Citation: 134 N.W. 702,22 N.D. 515
• Court: North Dakota Supreme Court

134 N.W. 702

22 N.D. 515

STYLES et al. v. DICKEY et al

Supreme Court of North Dakota

January 12, 1912

Rehearing denied February 19, 1912.

Appeal from District Court, Pierce county; Burr, J.

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.

Judgment vacated.

A. E Coger and T. A. Toner, for appellants.

Styles & Koffel, for respondents.

GOSS, J. SPALDING, Ch. J., concurring.

OPINION

This opinion is after rehearing had.

GOSS J.

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 appellant's 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 three hundred 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. Missouri P. R. Co. 50 Neb. 330, 70 N.W. 385; Liland v. Tweto, 19 N.D. 551, 125 N.W. 1032; Blessett v. Turcotte, 20 N.D. 151, 127 N.W. 505.

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 § 6736, Rev. Codes 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 §§ 7139 et seq., Rev. Codes 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 12 per cent interest thereon." Was the redemption in time? Sec. 6736 reads: "Computation of time. The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last is a holiday, and then it is also excluded." (Italics are ours.) And under § 6710 every Sunday is a holiday. Both these provisions have been in force since territorial days. See § 4749, Compiled Laws, declaring every Sunday a holiday, and § 4805, Compiled Laws, identical with § 6736, Rev. Codes 1905. Both were re-enacted in the 1895 Rev. Codes as §§ 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. 364, and People ex rel. Pugsley v. Luther, 1 Wend. 43, both on all fours with the case at bar if it were not for § 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 P. 220; Morgan v. Perkins, 94 Ga. 353, 21 S.E. 574; Close v. Twibell, 47 Ind.App. 290, 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 ten-day ordinance provision; Keys v. Keys, 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. 326, extending a twenty-day habeas corpus limit over Sunday; Broome v. Wellington, 1 Sandf. 664; Conway v. Smith Mercantile Co. 6 Wyo. 327, 49 L.R.A. 201, 44 P. 940; Allen v. Elliott, 67 Ala. 432; Edmundson v. Wragg, 104 Pa. 500, 49 Am. Rep. 590; Barnes v. Eddy, 12 R.I. 25; Thayer v. Felt, 4 Pick. 354; and Salter v. Burt, 20 Wend. 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, 37 L.Ed. 313, 13 S.Ct. 549, affirming a Dakota territorial decision in 5 Dak. 335, 40 N.W. 525.

By the very wording of § 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 including the last." English language is incapable of prescribing a rule more plain and definite. We cannot see where the addition thereto of the words "unless the last is a holiday, and then it is also excluded," leaves the meaning of the statute open to question or renders the statute in any degree ambiguous. The statute prescribes its application in general words; viz. to "the time in which any act provided by law is to be done." So, unless this general rule announced by § 6736 is inapplicable because of a contrary intent appearing from the statutes governing redemption, it must apply and extend the period therefor where the last day for performance falls on Sunday. In order to apply the statute at all, such must be the result. It applies unless the redemption statute as a later provision is exempted by its terms from the rule as to computation of time expressed in § 6736. Our statute permitting redemption from real estate sales existed in territorial days in the main as it now stands. It is impossible to come to the conclusion therefrom that any of the statutes on redemption exclude the operation of the statutory rule for computation of time any more than does nay general time limit statutory provision. And if all such provisions are to be construed as governing according to their terms, independent of the statutory rule of computation of time, to what can § 6736 ever be applicable? It must be construed according to its terms under any principle of interpretation of statutes. We cannot disregard it as not a statute of general application. To do so is to violate the statute in words and intent.

But let us consult legislation of other states. Many of the states have a rule similar to ours in this respect. Some of them provide, as do Wisconsin and New York in express terms, that for the statute to be operative the time limit must be expressed in days. See Williams v. Lane, 87 Wis. 152, 58 N.W. 77; Ryer v. Prudential Ins. Co. 185 N.Y. 6, 77 N.E. 727, reversing 110 A.D. 897, 95 N.Y.S. 1158, and following the leading New York case of Aultman & T. Co. v. Syme, 163 N.Y. 54, 79 Am. St. Rep. 565, 57 N.E. 168; Benoit v. New York C. & H. R. R. Co. 94 A.D. 24, 87 N.Y.S. 951. Alabama, California, Missouri, Indiana, Minnesota, Washington, Nebraska, Nevada, and Pennsylvania have our statute, § 6736; and a statute identical in substance exists in Illinois. See Burns's Anno. Stat. (Ind.) § 1304; Mo. Rev. Stat. 1899, § 4160; Wash. Stat. 1899, § 794, formerly § 743; Ill. Rev. Stat. 1874, chap. 100, § 6. See statute cited with holdings thereon in Bovey-DeLaittre Lumber Co. v. Tucker, 48 Minn. 223, 50 N.W. 1038; Spencer v. Haug, 45 Minn. 231, 47 N.W. 794; McCafferty v. Flinn, 32 Nev. 269, 107 P. 225; Spokane Falls v. Browne, 3 Wash. 84, 27 P. 1077; Kinney v. Heuring, 42...