Hodgson v. Banking-House of Bartholow, Lewis & Co.

Missouri Court of Appeals

Hodgson v. Banking-House of Bartholow, Lewis & Co.

9 Mo. App. 24, 1880 Mo. App. LEXIS 76

CourtMissouri Court of Appeals

DecidedApril 27, 1880

StatusPublished

Cited by4 cases

This text of 9 Mo. App. 24 (Hodgson v. Banking-House of Bartholow, Lewis & Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hodgson v. Banking-House of Bartholow, Lewis & Co., 9 Mo. App. 24, 1880 Mo. App. LEXIS 76 (Mo. Ct. App. 1880).

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Bakewell, J.,

delivered the opinion of the court.

This is a garnishment on execution before a justice of the peace. Plaintiff had judgment before the justice, and on appeal and trial de novo, there was also judgment for plaintiff.

The docket entry of the justice shows that the original cause on which was issued the execution under which the garnishee was summoned, came on to be heard on the 23d of August: “Whereupon the justice heard the evidence produced, and took the. case under advisement to August 27, 1877, at ten o’clock a. m. Now, at this day the justice having fully advised (sic) aud considered the evidence, doth adjudge that the plaintiff have judgment against said defendant,” etc.

[25]*25The statute provides (Wag. Stats. 838, sect. 9) that “ the justice * * * shall render judgment, and enter the same on his docket within three days after the cause shall have been submitted to him for his final decision.”

It is assumed that the entry of the justice shows that this provision of the statute was disregarded and it is argued that this worked a discontinuance of the action. It has been so held in New York under a similar statute ( Watson v. Davis, 19 Wend. 371) ; and it is evident that if the limitation may be disregarded, parties might have a difficulty in ascertaining when the time within which an appeal is allowable, had elapsed. But we need not consider the question, because it is not really raised by the record, a fact to which counsel on neither side seem to have adverted.

Courts may take judicial cognizance of the computation of time, and of the coincidence of the days of the week with the days of the month. 1 Greenl. on Ev., sects. —; Harvy v. Broad, 2 Salk. 626. Now, the 26th of August, 1877, fell on Sunday, and the statute provides (Rev. Stats., sect. 3126), that ‘ ‘ the time within which an act is to be done shall be computed by excluding the first day and including the last. If the last day be a Sunday, it shall be excluded.” The justice is to render judgment within three days. The submission in the case, on appellant’s interpretation of the docket entry, was on August 23d. We have to'exclude that day, and also to exclude the 26th, which, but for the fact that it was Sunday, would be the third day. The exclusion of .both these days makes Monday the third day. And as the submission was on the 23d, or at any rate, as there was no submission before the 23d, the judgment on the 27th was within three days after the cause was submitted.

It follows that no violation of the statutory provision is shown, no jurisdictional question arises, and it does not appear that the Circuit Court erred in admitting the docket entries or in proceeding with the cause.

Our attention is not directed to any other alleged error. [26]*26The judgment is therefore affirmed.

Judge Hayden concurs ; Judge Lewis is absent.

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Bakewell, J.,

delivered the opinion of the court.

This is a garnishment on execution before a justice of the peace. Plaintiff had judgment before the justice, and on appeal and trial de novo, there was also judgment for plaintiff.

The docket entry of the justice shows that the original cause on which was issued the execution under which the garnishee was summoned, came on to be heard on the 23d of August: “Whereupon the justice heard the evidence produced, and took the. case under advisement to August 27, 1877, at ten o’clock a. m. Now, at this day the justice having fully advised (sic) aud considered the evidence, doth adjudge that the plaintiff have judgment against said defendant,” etc.

[25]*25The statute provides (Wag. Stats. 838, sect. 9) that “ the justice * * * shall render judgment, and enter the same on his docket within three days after the cause shall have been submitted to him for his final decision.”

It is assumed that the entry of the justice shows that this provision of the statute was disregarded and it is argued that this worked a discontinuance of the action. It has been so held in New York under a similar statute ( Watson v. Davis, 19 Wend. 371) ; and it is evident that if the limitation may be disregarded, parties might have a difficulty in ascertaining when the time within which an appeal is allowable, had elapsed. But we need not consider the question, because it is not really raised by the record, a fact to which counsel on neither side seem to have adverted.

Courts may take judicial cognizance of the computation of time, and of the coincidence of the days of the week with the days of the month. 1 Greenl. on Ev., sects. —; Harvy v. Broad, 2 Salk. 626. Now, the 26th of August, 1877, fell on Sunday, and the statute provides (Rev. Stats., sect. 3126), that ‘ ‘ the time within which an act is to be done shall be computed by excluding the first day and including the last. If the last day be a Sunday, it shall be excluded.” The justice is to render judgment within three days. The submission in the case, on appellant’s interpretation of the docket entry, was on August 23d. We have to'exclude that day, and also to exclude the 26th, which, but for the fact that it was Sunday, would be the third day. The exclusion of .both these days makes Monday the third day. And as the submission was on the 23d, or at any rate, as there was no submission before the 23d, the judgment on the 27th was within three days after the cause was submitted.

It follows that no violation of the statutory provision is shown, no jurisdictional question arises, and it does not appear that the Circuit Court erred in admitting the docket entries or in proceeding with the cause.

Our attention is not directed to any other alleged error. [26]*26The judgment is therefore affirmed.

Judge Hayden concurs ; Judge Lewis is absent.

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9 Mo. App. 24, 1880 Mo. App. LEXIS 76, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodgson-v-banking-house-of-bartholow-lewis-co-moctapp-1880.

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