Deere, Mansur & Co. v. Hucht & Fierling

Ramsay, J. — The record shows that the appeal was allowed February 4, 1888. The first day of the next term of this court was March 5. This year is a leap-year. The transcript was filed September 10, 1888. The motion to affirm is based upon the ground that the transcript was not filed at least fifteen days before the March term of this court. Counsel for appellants contend that the appeal was. returnable to the October term, and not to the March term, 1888. The language of the statute governing appeals to the supreme court and courts of appeals in this state is : “ Section 3717. All appeals taken thirty days before the first day of the next term of the supreme court, or the St. Louis court of appeals, or the Kansas City court of appeals, shall be returnable to such next term, and all appeals taken in [158] term, shall be returnable to the second term thereafter. The appellant shall cause to be filed in the office of the clerk of the supreme court, or St. Louis court of appeals, or Kansas City court of appeals, at least fifteen days before the term of such court to which the appeal is returnable, a perfect transcript of the record and proceedings in the cause.” Sess. Acts, 1885, p. 217. If we omit the fourth day of February' — -the day the appeal was taken — and count from the fifth of February to the fifth of March, inclusive, it will be seen that the appeal was taken exactly thirty days before the first day of the March term. Section 3126, Revised Statutes, 1879, among other things, provides that: “ The time within which an act is to be done shall be computed by excluding the first day and including the last.” Or, if we adopt the rule stated by Judge Bates, in State ex rel. v. Gasconade Co. Court, 33 Mo. 102, in these words: “In the computation of time it is laid down, generally, that where the computation is to be made from an act done the day when such act was done is included,” we should count the fourth day of February. In the case just cited the ordinance required that the oath should be filed in the office of the county court at least five days before the day of election. The oath was filed October 30, and the day of the election was November 4, following, and it was held to have been filed five days before the election. To adopt either method of computation we have the same result. An appeal taken on the fourth day of February, 1888, under the statute, was returnable to the March term, 1888, of this court. The motion is, therefore, sustained and the judgment is affirmed. All concur.