Dougherty v. Porter

The opinion of the court was delivered by Brewer, J.: *' bfe-Tssuef made up. [208] s' cpmpnSng [207] The only question presented is, whether the action was triable at the term at which it was tried; and that depends upon whether the issues were made up ten days before the term. The statute of 1871 was in force, a statute we have recently had occasion to examine in the case of Gapen v. Stephenson, just decided; {ante, p. 140.) In that case we held that the statute referred to , # the time the issues were actually made up, and not to the time they ought to have been made up. And it makes no difference whether they were so made up by the filing of the pleading before, or after, the times fixed by statute. If the issues were actually made up in this case, ten days before the term, the action was triable; otherwise [208] not. The term commenced September 6th. The reply was filed August 27th. Including the first day of the term, and the day upon which the reply was filed, there were eleven days; excluding both, nine days; while including one, and excluding the other, would give the requisite ten days. The language of the statute is, “are made up ten days before the term.” In other words, if ten days before the term the issues are made up, the action is triable. And it seems to us, that in computing these ten days, the first day of the term should be excluded, and the day in which the issues were made up by the filing of the reply, included. This appears to be in accordance with the authorities. In the case of the soldier’s voting bill, 45 New Hamp. 618, it was held, “that in the computation of time from a date, or from the day of a date, the day of the date is to be excluded; but that where a computation is to be made from an act done, or from the time of an act, the day in which the act is done, is to be included.” To like effect are the cases of Jacobs v. Graham, 1 Blackf. 391, and Chiles v. Smith’s Heirs, 13 B. Monroe, 461. In the latter case the court says : “ It was decided by this court in the case of Woods v. Patrick, Har. 457, that in calculating the thirty days, which were required by the statute to intervene between the lodging of the order and the commencement of the next term, to entitle the party to a change of venue, the day of depositing the order should be included. So where process is required to be served a certain number of days before the term, the day on which the process was executed is reckoned as one of the days in the computation of the time.” [209] Sections 361 coae,7coñ-of etruea. [208] Applying this rule, and the day of filing the reply and joining the issue, the day of an act done will be included. In Walsh, Trustee, v. Boyle, 30 Maryland, 266, a distinction was noticed. In that case, by order of the court, testimony was to be taken upon giving one day’s notice. Notice was given on the 28th, and the testimony taken on the 29th, and the notice was held sufficient. The court says, “Now it. is true that when a statute or rule of court requires notice to [209] be given of a certain number of dear days, both the day on which the notice is served and the day of the proceeding, must be excluded. King v. Justices, &c., 3 Barn. & Ald. 581. It has also been held that a statute requiring fourteen days at least, means fourteen clear days, and the same rule must be adopted. The Queen v. The Justices of Shropshire, 8 Adol. & Ellis, 173; O’ Connor v. Towns, 1 Texas, 107.” But we take the law to be well settled, however, in matters of practice, where any particular number of days not expressed to be clear days is prescribed, the rule in regard to the comPul'ati°n of time, is, not to exclude both the day on which the notice is served, and the Jay on which the act is to be performed, but to exclude the one and include the other. This distinction may be important in determining when depositions must be filed, for the statute reads that they “must be filed at least one day before the day of trial.” Gen. Stat. p. 698, § 361. In Vairin v. Edmonson, 5 Gilman, 270, where a section of the attachment-act required that sixty days should intervene between the first publication of notice, and the term of court, the court held that in computing the time the day of the first publication of notice was to be excluded, and the first day of the term included. Doubtless a correct result was thus reached, but' it occurs to us that the ruling would have been more in harmony with the course of decision if the day excluded had been included, and the day included excluded. In Black v. Johns, 68 Penn. St. 83, it was held that “a service of the 28th of October, the return-day being the 7th of November, is ten days before the return-day, that day being left out of the count.” The spirit, if not the letter of our statute sustains this computation. It provides that “the time within which an act is to be done shall be computed by excluding the first day, and including the last.” Gen. Stat., p. 771, § 722. If the statute required ten days after a term of court, we should exclude the last day of the term and include the day of filing. We compute forward in that case, because the close of the term is the point from which the [210] computation dates. In the case at bar, for like reason, we compute backward. The commencement of the term is the starting point, and we measure from that to determine how long before, the issue has been joined. In Dutton v. Hobson, 7 Kas. 196, cited by counsel for plaintiff, we held that a summons could not regularly be served on the return-day, for the statute says before the return day.” That excluded the return-day; so, “before the term,” excludes the first day of the .term. But computing from the term, as the starting point, and omitting the first day of the term and including the day of the act, the day of filing the reply and making up the issue, and we find that the issues were made up ten days before the term. The judgment must be affirmed. All the Justices concurring.