Zelig v. Blue Point Oyster, Co.

Mr. Justice Burnett delivered the opinion of the court. 1. The court having rendered a final judgment of February 26, 1910, its power to amend the same lapsed with the end of the February term except for mere clerical [538] errors, but not for matters of substance, unless the court retained its jurisdiction over it for subsequent purposes by means of the filing of a motion for a new trial or some such means. Opportunity was given thus to keep the judgment within the breast of the court by filing exceptions to the findings and a motion to the court to render other findings, but this opportunity was allowed to lapse, and, so far as the record before us discloses, nothing was done at the February term that would retain the judgment in this case within the bosom of the court; hence the power of the court over that judgment ceased with the end of its February term. Deering v. Quivey, 26 Or. 556 (38 Pac. 710) ; Henrichsen v. Smith, 29 Or. 475 (42 Pac. 486: 44 Pac. 496) ; Alexander v. Ling, 31 Or. 222 (50 Pac. 915). 2. Therefore the orders of the court rendered at its March term in this action may be considered void, and, although as such void orders they might be appealable on the doctrine of Smith v. Ellendale Mill Co., 4 Or. 70, and kindred cases yet, being void, neither they nor the appeal therefrom would affect the judgment of February 26th. By an appeal from the void judgment, the records might be purged of such useless matter, but it is apprehended that the power of the appellate court could go no further than this. The order of September 30th in terms allowed the appellant “up to and including the 2d day of October, 1910,” in which to file a transcript on appeal in this court. The appellants contend that because October 2, 1910, was a Sunday, they were in time by filing the transcript on the succeeding Monday, October 3d, and they rely upon Section 531, L. O. L.: “The time within which an act it to be done as provided in this Code shall be computed by excluding the first day and. including the last, unless the last day fall upon Sunday, Christmas or other nonjudicial day, in which case the last day shall also be excluded.” [539] All the eases hitherto decided by this court involving a construction of this section are cases in which a certain number of days were allowed by order within which a given act might be performed. No case has arisen hitherto where this section has been applied in construing an order of court allowing an act to be done by a certain date, or, in the language of the order in question, “up to and including” a given date. The language of the concluding paragraph in Washsmuth v. Routledge, 36 Or. 307 (51 Pac. 443: 59 Pac. 454), is seemingly in conflict with this statement, but an examination of the transcript in that case discloses that the order in question there allowed 20 days within which to file an abstract, and by computation it appeared that the 20 days expired on Sunday, November 14th. By applying this section to the computation of 20 days the last of which was Sunday the court determined that the filing was in time on the 15th. 3. The question, then, is, What construction shall be given to this order of the court allowing the appellants up to and including Sunday, October 2, 1910, in which to file the transcript? It is well to bear in mind that the statute provides for computation of time in which an act is to be done as provided in the Code. The reason for this is plain. The legislature in prescribing that an act should be done in 30 days or any other number of days after a given event could not, of course, foresee what situations would arise to which this rule was applicable, and as a conventional rule for computing time to be applied in general to such cases prescribed that, when the last day fell upon Sunday, it should be excluded. Many respectable authorities have laid down the rule that under such circumstances the act could not be performed later than the preceding Saturday, but the practice is different in this State, and the more liberal rule [540] is enforced of allowing the act to be done on the succeeding Monday when it depends upon a given number of days, the last of which is Sunday. But this is a rule of construction applied to an act to be done as provided in the Code, and not to cases where orders prescribe otherwise in express terms. In Wachsmuth v. Routledge, 36 Or. 307 (51 Pac. 443: 59 Pac. 454), it was contended upon a statute requiring an appellant to file the transcript “by the second day of the next regular term of the appellate court thereafter” that the filing should take place before the second day of the term, but the court here held that it was in time if the transcript was filed on the second day, but did not extend the rule further. By parity of reasoning, if it is proper to construe the order of September 30th by this rule, the filing of the transcript could not take place after the day allowed in the order, even though that day be Sunday. The order must be construed not by the rule of the statute, because the statute expressly refers to an act to be done as provided in the Code, according to its own terms. The order was made by consent of the parties having knowledge of the calendar, and being fully aware of the days of the week involved. The court expressly included Sunday, October 2d, in the order. It had a right to make the order in those terms. The fact that is was thus made by the consent of the parties makes it in a sense their contract of record, and we cannot so construe it under these circumstances as to exclude Sunday, when it expressly states that Sunday was included. It follows that filing the transcript after the time thus limited by the circuit court was too late to give this court jurisdiction. The result is that the appeal is dismissed. Appeal Dismissed. [541] Decided April 4, 1911.