Diesing v. Reilly

Bond, J. This is an appeal from an order of the circuit court dismissing an appeal taken by defendant from a judgment of a justice of the peace in an action of unlawful detainer, rendered December 20, 1897. The justice allowed an appeal to the circuit court December 27, 1897. A transcript of the proceedings before him was filed in the circuit court, with the following indorsements thereon, to wit, “12. 28. ’97;” also “Filed December 30, 1897, 12.44 p. m.” On the twenty-fourth of February plaintiff moved the circuit court to dismiss the appeal as being out of time. Defendant filed an affidavit that the transcript was deposited with the deputy clerk of the circuit court on the twenty-eighth of December, 1897, and that he [455] placed thereon the notation of 12, 28, ’97, to indicate that fact. The circuit court sustained the motion to dismiss, and defendant appealed. The only question presented by this appeal is whether or not Saturday and Sunday being respectively the twenty-fifth and twenty-sixth days of December. are to be excluded from the six days allowed for the appeal in this case from the fact that the circuit court was in session at the time it was taken. "We think the notation 12, 28, ’97, on the back of the transcript together with appellant’s affidavit that it was made by the deputy clerk of the circuit court when the transcript was delivered, rendered it reasonably certain that the appeal was perfected on the twenty-eighth day, which would make it timely if both of the above mentioned days are excluded from the computation. It has always been field that Sunday is not to be counted as part of the time allowed for judicial proceedings nor any matters of practice or procedure in the courts. State v. May, 142 Mo. loc. cit. 149, and cases cited. "We are not, however, aware of any rule forbidding the performance of judicial duties on Christmas (twenty-fifth of December), or the other holidays mentioned in section 8952, Revised Statutes 1889. That section merely prohibits the service of civil process, except in certain attachment cases, but a judgment rendered on one of the days mentioned in the statute is not void. Bear v. Youngman, 19 Mo. App. 41. Neither have we been shown any authority for the exclusion of the twenty-fifth of December as a part of the time allowed for the performance of a statutory act. It has been expressly held by the supreme court that an appeal from a justice’s judgment in an action of forcible entry and detainer, if taken during the session of the circuit court, must be completed in six days, in order to vest that court with jurisdiction. [456] Robinson v. Walter, 45 Mo. 117. In the case at bar the circuit court was in session. The judgment of the justice was rendered on the twentieth day of December. The appeal and transcript, even if Sunday the twenty-sixth of December is excluded, should have been filed at least on Monday, the twenty-seventh of December. Even upon the most favorable construction of the record entry of the filing of the transcript it was not filed until December-28, hence it was out of time, and we can not reverse the action of the circuit court in so holding. The judgment herein is affirmed. All concur.