Swift & Co v. Wood

• Decision Date: 26 January 1905
• Citation: 103 Va. 494,49 S.E. 643
• Court: Virginia Supreme Court
• Parties: SWIFT & CO. v. WOOD et al.

49 S.E. 643

103 Va. 494

SWIFT & CO.

v.WOOD et al.

Supreme Court of Appeals of Virginia.

Jan. 26, 1905.

STATUTES—INTERPRETATION—RE-ENACTMENT — NOTICE FOB JUDGMENT—SERVICE — COMPUTATION OF TIME—SUNDAYS.

1. When a statute has been construed by the courts, and is then re-enacted by the Legislature, the construction given it is presumed to be sanctioned by the Legislature, and thenceforth becomes obligatory upon the courts.

2. Section 5, cl. 8, of the Code of 1887 [Va. Code 1904, p. 6], provides that, where a statute requires a notice to be given or an act done a certain time before any proceeding, there must be that time exclusive of the day for the proceeding, but the day on which the notice is given or act done may be counted. Section 3211 [page 1686] provides that a notice of a motion for judgment must be returned to the clerk's office within five days after service. Held, that a notice for judgment served on the 21st and returned on the 26th day of the month is not returned within five days after service, and a judgment by default upon such notice is not valid.

3. In computing time, Sunday is to be included, unless the last day falls on Sunday.¶ 3. See Time, voL 45, Cent. Dig. §§ 34-62.

Error to Corporation Court of City of Newport News.

Action by Swift & Co. against Wood and others. From an order setting aside a judgment for plaintiffs, plaintiffs bring error. Affirmed.

Wm. C. Stuart, for plaintiffs in error.

R. M. Hudson, for defendants in error.

HARRISON, J. On the 16th day of December, 1903, notice was served upon the plaintiffs in error that the defendants in error would on the 21st day of December, 1903, move the corporation court of the city of Newport News to set aside and declarenull and void a pretended or alleged judgment obtained by the plaintiffs in error on March 11, 1901, for $263.64 and interest

The judgment sought to be set aside under this notice had been obtained against the defendants in error, on motion, under the proceeding provided for by section 3211 of the Code of 1887 [Va. Code 1904, p. 1686]; and, among other grounds assigned for setting it aside, they asserted that the notice upon which the judgment was obtained had not been returned to the clerk's office, as provided by the statute, within five days after its alleged service. The notice was served February 21, 1901, and returned to the clerk's office on the 26th of that month. The plaintiffs in error insist that this return of the notice was within five days, as contemplated by the statute.

This question has been settled in this state for many years by the decision of this court in the case of Turnbull v. Thompson, 27 Grat. 306. In that case the objection was made that the original process commencing the suit was served on the defendant February 3, 1862, and that the judgment became final on the 3d of March, 1862, in violation of the statute which declares that no judgment by default on scire facias or summons shall be valid if it becomes final within one month after the service of such process. Judge Staples, delivering the opinion of the court, says: "The month indicated by the statute is, of course, a calendar month; and, if the 3d day of February—the day of the service of the process—is to be included in computing the time, then the judgment did not become final within a month after the service of process." The learned judge then proceeds as follows: "Without undertaking now to discuss the doctrines of the common law in respect to the days to be included or...