Lieberman v. Findley

SMITH, P. J. On September 30, 1898, the plaintiff obtained a judgment against defendants before a justice of the peace on an account for medical services. On the same day the defendants took an appeal from the judgment of the justice to the circuit court. The next term of the circuit court, under the statute, began on the tenth day of October, following. The cause [387] was docketed and tried in the circuit court at said October term. The defendants failed to appear in the case in that court until after the judgment there was rendered against them. They now assail the judgment for irregularity, claiming that the appeal was not returnable to the said October term, but to the next succeeding term. This objection goes, of course, to the jurisdiction of the court. If the appeal was not returnable to the October term, but to the next succeeding term, then, most clearly, the appeal was-ineffectual to remove the cause into that court at the said October term, and therefore the court was then without appellate jurisdiction. The question thus raised by the defendants must be determined with reference to the statute, which provides: “All appeals allowed ten days before the first day of the term of the appellate court next after the appeal is allowed shall be determined at such term, unless otherwise continued for cause.” R. S. 1889, sec. 6311. Was the appeal here allowed ten days before the first day of the term of the appellate court next after the appeal was allowed? It is seen that if we count the day on which the appeal was allowed that ten days remain, or, if we exclude the first day of the appellate court next after the appeal was allowed, then ten days also remain. In the computation of time, the general rule is to include the first and exclude the last day of the series. Our statute is, that the time within which an act may be done shall be computed by excluding the first day and including the last; if the last day be Sunday it should be excluded. R. S. 1889, sec. 6570. In Bailey v. Lubke, 8 Mo. App. 57, it was held that an appeal allowed May 21, is taken ten days before the first day of a term commencing June 3. That case was similar to this in its essentia! features and therefore the ruling therein made must dominate this. In computing time under a statute, Sunday will be [388] counted unless expressly excepted. Clapton v. Taylor, 49 Mo. App. 117; St. Joseph v. Landis, 54 Mo. App. 315. And in computing the time limited for perfecting appeals from a justice, Sunday is to be included—it is not a dies non. Patchin v. Bonsack, 52 Mo. 431. So that it is plain enough that, according to the rules just referred to, if the intervening Sundays be included, as they must, the appeal was allowed ten days before the first day of the term next after it was allowed, and therefore it had the effect to give the court to which it was removed jurisdiction at the term it was tried. The appeal was taken on the day of the trial, and for that reason the defendants were not entitled to other notice thereof. R. S. 1889,'sec. 6342. The judgment is not subject to the objection for irregularity which the defendant has lodged against it. If, when the cause was called for trial, the defendants, did not appear in person or by attorney, they have only themselves to blame. They were not precluded from so doing in consequence of any want of adherence to any prescribed rule or mode of proceeding, either in omitting to do something that was necessary for the due and orderly conducting of the suit, or doing it in an unseasonable time or improper manner; and they are therefore not in a position to complain of the action of the court. In view of the law, as it has just been stated to be, it is clear that the defendants can not be heard to claim that chey were surprised by the action of the court in proceeding to judgment in the case. Nothing appears either in the motion to set aside the judgment or in the affidavits filed in support thereof to justify us in disturbing the judgment. If the defendants, or either of them, were at the time of the trial sick, and for that reason unable to attend the same, and really had a meritorious defense to the plaintiff’s action, they ought, through their attorney, to have [389] presented the facts to the court and have requested a postponement of the trial or continuance of the cause, and failing to do that, the court could not do otherwise than proceed regularly with the cause to trial. In consequence of this neglect of the defendants or their attorneys we are not willing to say that the court erred in refusing to set aside the judgment. Florez v. Uhrig, 35 Mo. 517. The evidence preserved by the bill of exceptions is ample to support the verdict and the judgment must accordingly be affirmed. Ellison, J., concurs; Gill, J., not sitting.