White v. Hinton

• Citation: 3 Wyo. 753,30 P. 953
• Parties: WHITE et al. v. HINTON et al
• Decision Date: 22 August 1892
• Court: United States State Supreme Court of Wyoming

30 P. 953

3 Wyo. 753

WHITE et al. v. HINTON et al

Supreme Court of Wyoming

August 22, 1892

Appeal from district court, Uinta county; SAMUEL T. CORN, Judge.

Bill by Charles M. White, administrator of the estate of Samuel H Winsor, deceased, and George Ames Winsor and Marie Booth Winsor, by their next friend, Emma A. Winsor, suing also in her own behalf, against William Hinton and the Union Pacific Railway Company, to vacate a decree of foreclosure of mortgage against Samuel H. Winsor for want of proper service and of jurisdiction in the court decreeing foreclosure, and on the ground of Winsor's insanity at time of commencement of suit. From a judgment sustaining a demurrer to the bill, plaintiffs appeal. Affirmed.

Judgment affirmed.

William Ware Peck, for appellants.

Lacey &amp Van Devanter, for appellees.

CONAWAY J. GROESBECK, C. J., and MERRELL, J., concur.

OPINION

CONAWAY, J.

On November 30, 1874, Samuel H. Winsor made his promissory note in favor of William Hinton for the sum of $ 2,145, with interest at 15 per cent. per annum from date. At the same time, and to secure payment of this note, Winsor executed to Hinton a mortgage upon the realty in controversy in this suit. In May, 1876, Winsor removed to the state of Indiana, where he resided continuously from that time until his death, in October, 1881. He left, as his only surviving heirs, Emma A. Winsor, his widow, and two minor children of himself and the said Emma, by name George Ames Winsor, born January 27, 1873, and Marie Booth Winsor, born January 14, 1875. These heirs and Charles M. White, administrator of the estate of said Samuel H. Winsor, in Wyoming, are the complainants in this suit. On March 15, 1877, Hinton commenced suit for the foreclosure of his mortgage in the district court of the third judicial district for Uinta county. Winsor was defendant therein, as also the Uinta Coal & Mining Company, but this company passed out of the suit by plea of disclaimer. Uinta county was made part of the second judicial district by an act of the legislative assembly of Wyoming territory, approved December 15, 1877, and during the pendency of the foreclosure suit; and such proceedings were had in said suit that, on July 31, 1878, the second judicial district court, sitting within and for Uinta county, made, in due form, a decree of foreclosure of said mortgage finding, among other things, that due service had been made upon both defendants, and that there was due upon the note $ 3,088.80. Pursuant to this decree, the master sold the realty in due course of law to Hinton for $ 2,700, that being the highest bid. This sale was confirmed, and a deed ordered accordingly by said second judicial district court, sitting within and for Uinta county, at its July term, and on the 6th day of July, 1878. This deed never passed to Hinton. He took immediate possession of the property, and on September 5, 1878, deeded it, and delivered possession to the Union Pacific Railroad Company, the predecessor in title and interest of one of the defendants herein, the Union Pacific Railway Company. The service of notice upon Winsor in the foreclosure suit was by publication. The law then in force required service, when made by publication, to be made in a newspaper printed in the county where the suit was begun, or, if no newspaper was printed there, in a newspaper of general circulation in such county, and printed in Wyoming territory. The affidavit of publication on file shows publication of a notice in due form for the requisite time in the Evanston Age, a newspaper of general circulation in Uinta county. It does not show that the Evanston Age was printed in Uinta county, or that there was no newspaper printed in Uinta county, and that the Evanston Age was printed elsewhere in the territory. This affidavit is the only evidence of a constructive service furnished in the foreclosure suit. Winsor became insane after the execution of his note and mortgage to Hinton, and before the commencement of the foreclosure suit, and continued insane until his death. No appearance in that suit was made by or for him, and no guardian ad litem was appointed, and he had no general guardian in or out of the territory. How his affairs were managed during his insanity does not appear. The defendant the Union Pacific Railroad Company and the defendant William Hinton have taken from said property, and have appropriated, sold, and consumed, quantities of coal, largely exceeding in value the amount of Hinton's note, with interest, above cost of mining, handling, marketing, and all expenses therewith connected. It is asked in this suit that the decree of foreclosure, the master's sale to Hinton, and Hinton's deed to the Union Pacific Railroad Company be annulled, vacated, and held for naught, and the Union Pacific Railway Company be perpetually enjoined from asserting any title to the property in controversy under its deed, and extracting coal from or committing waste upon said property, and that the complainants be admitted to redeem from said mortgage, and that an accounting be had of the coal taken, and of its value above expenses, and the amount each of said defendants is responsible for, and the amount to which each of said complainants is entitled, and that the court decree accordingly. To the bill of complaint, alleging, substantially, as above, and asking relief substantially as stated, a general demurrer was interposed. The district court sustained the demurrer, and complainants appeal. It is not to be overlooked, however, that complainants asked that Hinton's deed to the Union Pacific Railroad Company should be considered as extinguishing his mortgage. The claim is that the deed is void, but still has the effect to extinguish the mortgage. This cannot be the case. So, in effect, the relief asked is, as stated, to declare void, vacate, or annul the decree of foreclosure, the master's sale thereunder to Hinton, and Hinton's deed to the Union Pacific Railroad Company, to admit complainants to redeem from the mortgage, and to have an accounting. Complainants claim that the act of December 15, 1877, attaching Uinta county to the second judicial district, was invalid, and never became law; that the bill was really introduced, passed, transmitted to the governor, approved, and returned by him, on December 16th, and after the session of the legislature had expired by operation of law; and the bill of complaint alleges that, "in order to give the aspect of validity to said proceedings in the matter of the introduction, passage, transmission, approval, and return of the bill, and thus falsely and unlawfully, the bill was dated on the 15th day of said December, all the proceedings of said houses in respect thereto before its transmission to the governor, the date of its transmission to the governor, and of its return and reception by the assembly were entered upon the journals as of the said 15th day of December, making the journals falsely and unlawfully read as if all said proceedings in the matter of the bill transpired on that day and that the governor, falsely and illegally concerting with the legislature, dated the approval with the last-mentioned date. That afterwards, and on the 16th day of December, and before noon thereof, and with like want of authority, capacity, and legality, the members of said house of representatives and said council, in the name of said fifth legislative assembly, the session of which had ceased to exist in law on the expiration of the said 15th day of December, passed a joint resolution of adjournment sine die, and thereupon dissolved and departed." The bill of complaint elsewhere alleges that the legislature convened at noon, November 6th. The act of congress controlling the session limited its duration to 40 days. This period of 40 days, reckoning consecutive days, holidays and all, would terminate at noon, December 16th.

It is said the law knows no fractions of days, but counts each fraction as a whole day. But this rule is by no means universal. It is in a measure abrogated by our Civil Code § 2341: "Unless otherwise specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day, and including the last, and, if the last be Sunday, it shall be excluded." And this is a reasonable rule for computing time, independently of statute. The rule of counting fractions of days as whole days is doubtless good law in its proper and accustomed application. But it is technical and unnatural. In ordinary language, a day commencing at noon means a day closing at noon of the following day. The technical rule of law, making a part of a day a whole day, is not recognized as controlling legislative days. A calendar day, even, is not necessarily a legislative day. A fortiori a fraction of a calendar day is not necessarily, or even presumptively, a legislative day. By a long established practice of congress, a calendar day is not recognized as limiting a session of any legislative day. Dating legislative proceedings of a day's session prolonged into the morning hours of the succeeding day as of the date when the diurnal session began seems to have the sanction of custom in both houses of congress, and such dating is not considered either false or unlawful. Whether the limitation of 40 days means 40 consecutive days, or 40 days of actual legislative session, excluding Sundays and other days when the legislature does not sit, is a question upon which there seems to be some conflict of judicial opinion. Some of the best-considered cases hold that the limitation allows 40 full days for actual legislative work. But in this case the bill of complaint shows a final adjournment before noon of the 16th day of December, which was within...