United States Nat. Bank v. Shefler

Mr. Justice Eakin delivered the opinion of the court. The ground on which this motion is based is that the appeal was not taken within 60 days from the date of the decree, and that service was not made on the Sheflers. Laws of 1913, page 617, amending Section 550, L. O. L., provides, among other things: “An appeal * * shall be taken by serving and filing the notice of appeal, within 60 days from the entry of the * * decree. * * ” The decree in this case was rendered April 30, 1914. The notice of appeal was served by mail. In the return of service it does not appear when or where the service was made, except that the affidavit of mailing was sworn to June 29,1914. Geo. C. Shefler and Belle M. Shefler were not served although they were the debtors on said note, against whom a personal judgment for $75,000 was rendered in the decree appealed from. The notice, with the return indorsed thereon, was filed June 30th. 1. It is suggested that the Sheflers should have been served with the notice, but they are not adverse parties. There is no modification of the decree that can [581] be made on the appeal which would affect them adversely, and, as the decree -is adverse to them, they have no interest in upholding it. 2. The service of notice having been filed June 30th, it fell within the required time, as it is just 60 days from May 1st to June 30th. In the computation of time within which an act shall be done, the statute provides that the first day shall be excluded and the day on which the act is done shall be included in the count: Section 531, L. O. L. The judgment was rendered April 30th, and within 60 days thereafter the notice of appeal must have been filed. The only question involved is the computation of the time, whether the day on which the judgment was rendered, April 30th, only shall be excluded, or the next day, May 1st, shall be the day excluded. Judge E. S. Bean, in the case of Boothe v. Scriber, 48 Or. 561 (87 Pac. 887, 90 Pac. 1002), held, in computing the time for filing the transcript, that the respondent had all day the fifth day after service of the undertaking in which to except to the sufficiency of the sureties, and that the fifth day is not the day to be excluded from the count of 30 days in which to file the transcript, but the day after shall be the day excluded from the count. The decision in that case has been followed in several cases, such as Pringle Falls Power Co. v. Patterson, 65 Or. 474 (128 Pac. 820, 132 Pac. 527), which is a similar case. And in 38 Cyc. 318, where this question is fully discussed, he finally concludes that in most jurisdictions, as a day is an indivisible point of time, the act and the day on which the act is done are coextensive, and that the day on which the act is done will not be the first day to be excluded from the count. In the case of Vincent v. First Nat. Bank of Newberg, 76 Or. 579 (143 Pac. [582] 1100), where the same question as the one here was involved, Chief Justice McBride followed the rule laid down in the Boothe Case, which we will follow as the safer rule. The motion to dismiss is denied. Motion Denied. Mr. Justice Ramsey dissents.