Williams Bros. v. Bank of Blue Mountain

Smith, C. J., delivered the opinion of the court. (After stating the facts as above). As we understand the assignments of error, they are to the effect' that the court below erred. (1) in rendering a decree against Humphrey and Hughes at the special teim, for the reason that the cause was not triable at the regular term; (2) in including in the-decree against Humphrey and Hughes the attorney’s fee agreed to he paid by Williams Bros, in the note sued on; (3) in taxing Humphrey and Hughes with all the costs incurred in the court below. Another assignment of error does complain of the provision in the decree that Humphrey and Hughes are liable to the appellee “in proportion and on the basis of the respective judgments here rendered against them respectively.” But we presume that this assignment is but another form of the assignment that no decree at all should have- been rendered against Humphrey and Hughes, for, if the decree is otherwise correct, this provision seems to be unobjectionable. It does not appear from the record by whom the cause was set down for hearing, or what parties or their counsel appeared and participated in the trial, but we will assume, for the sake of the argument, that it was set down for hearing by the complainants, and that none of the defendants or their attorneys appeared at the trial. The trial of a case cannot be forced by either party against the will of the other at a special term of court, unless it were properly triable at the preceding regular term (Commercial Bank v. Galloway, 6 How. 515; Hatto v. Brooks, 33 Miss. 575), and the arguments in support of the first assignment of error are: (1) That the cause was not triable at the special term as to any of the defendants to the bill, for the reason that two months did not intervene between the filing of the answers of the various defendants other than Humphrey, and the time for the convening of the regular term of the court as required by section 1937, Code of 1906 (Hemingway’s Code, section 1597) ; and (2) [187] that it was not triable as to Humphrey, for the additional reason that no decree pro oonfesso was taken against him either before or at a regular term of court. The statute does not provide that- a cause shall not be tried until the expiration of the two months from the filing of the answers, but that it shall not be set down for hearing by the defendant before the expiration of that time. It may be set down for trial by the complainant although such time has not elapsed, in which event the allegations of the answer must be taken as true. Sections 603 and 1937, Code of 1906; Hemingway’s Code, sections 363 and 1597. This cause, therefore, was triable at the preceding regular term of the court at the option of the complainant, but, if it had been set down for trial by the complainant, the answers of the defendants must have been taken as true. Moreover, the objection that the cause was not triable at the special term, because two months did not intervene between the filing of the answers and the day on which the regular term should have convened, cannot be raised here by either Humphrey or Hughes, because of the provision of section 4944, Code of 1906 (Hemingway’s Code, section 3220), that “one of several appellants shall not be entitled to a judgment of reversal because of an error in the judgment or decree against another, not affecting his rights in the case.” Humphrey filed-no answer, and two months intervened between the filing of Hughes’ answer and the day on which the regular term should have been held. The months contemplated by the statute are calendar months, section 1586, Code of 1906 (Hemingway’s Code, section 1353), in computing which “time,must be reckoned by looking at the calendar and not by counting the days,” and when not coincident with the particular month named in the calendar such a month is the period of time from the day from which the month is to be computed to the day numerically corresponding thereto in the following month less one, if the following month has so many days; if not, to the last day thereof. Migotti v. Colvill, L. R. 4 [188] 4 C. P. D. 233; Daley v. Anderson, 7 Wyo. 1, 48 Pac. 839, 75 Am. St. Rep. 870. For example, a calendar month beginning on January 29th will end at twelve o’clock on the night of February 28th, and one beginning on January 30th will also end at the same date, February 28th, except in the years in which February has twenty-nine days, and then the calendar month will end at twelve o’clock on the night of February 29th. Computing the time from the filing of Hughes’ answer on January 19th, the second of the two months expired at twelve o’clock on March 18th, or excluding the day of the filing, as to the necessity for which we express no opinion, the second of the two months expired on the night of March 19th. So that in either event two months intervened between the time of the filing of the answer and the 20th day of March, the day on which the regular term of the court was due to be held. The cause was triable as to Humphrey at the regular term preceding the special term at which the decree herein was rendered, although no decree pro confesso had been theretofore or was then taken against him, a decree pro confesso being simply one step in the trial of the cause. The second assignment of error as hereinbefore set out is confessed by the appellee. • The costs incurred in the court below by the appellant in attempting to collect the note from the defendants other than Humphrey and Hughes should not have been taken against either Humphrey or Hughes, but each of them should have been taxed with the costs incurred by the appellant in enforcing its claim against them and by them in defense thereof. The decree of the court below will be reversed, and decree will be rendered here in accordance with this opinion. Reversed, and decree here.