McCabe-Duprey Tanning Co. v. Eubanks

102 P. 795, 57 Or. 44, 1910 Ore. LEXIS 9

• Court: Oregon Supreme Court
• Decided: August 3, 1910
• Status: Published

Opinions

Decided July 13, 1909.

On Motion to Dismiss.

[102 Pao. 795.]

Mr. Marcus W. Robbins, for the motion. Mr. Oliver S. Brown, contra.

Opinion by

Mr. Chief Justice Moore.

1. This is a motion to dismiss an appeal on the ground that the transcript was not filed within the prescribed time. The circuit court for Josephine County sustained a writ of review, and remanded the cause to the justice’s court for Grants Pass district, with directions to vacate a judgment rendered therein and to try the action on its merits. To reverse the ruling of the circuit court, the defendant gave a notice of appeal, and on January 23, 1909, served and filed an undertaking therefor, to which no exception was taken to the sufficiency of the surety. The adverse party of his attorney must except to the sufficiency of the sureties on the undertaking within five days after service of said undertaking, or he shall be deemed to have waived his right thereto. Section 549, subd. 2, B. & C. Comp.

2. By computing time according to Section 531, B. & C. Comp., the first day, or the 23d of January, is omitted, whereby the fifth day fell on the 28th of that month, following which day the appeal became perfected: Boothe v. Scriber, 48 Or. 561 (87 Pac. 887: 90 Pac. 1002.) The first day, therefore, on which the transcript could legally be filed was January 29, 1909, and the defendant was required within thirty days therefrom to file in this court a transcript on appeal. Section 553, B. & C. Comp. The statute regulating the manner of computing time is as follows:

“The time within which an act is to be done, as provided in this code, shall be computed by excluding the first day and including the last, unless the last day fall upon a Sunday, Christmas, or other non judicial day, in which case the last day shall also be excluded.”

Section 531, B. & C. Comp. According to the above rule, by excluding the first day — i. e., the 29th of January —the defendant had two days remaining in that month and 28 days in February, in order to complete the required 30 days; but as the last day, or the 28th of February, was Sunday, that day was properly excluded, and the defendant was allowed until the following day, or the 1st of March, 1909, within which to file the transcript (Boothe v. Scriber, 48 Or. 561: 87 Pac. 887: 90 Pac. 1002) ; and, as he filed it with the clerk of this court on that day, he complied with the rule announced.

This case was submitted without argument, under the proviso of-Rule 16 of the Supreme Court, 50 Or. 580 (91 Pac. VIII).

Reversed. For appellant there was a brief over the name of Mr. Oliver S. Brown. For respondent there was a brief over the name of Mr. Marcus W. Robbins.

The motion will therefore be denied. Denied.