Ogden v. Redman

Court of Appeals of Kentucky

Ogden v. Redman

10 Ky. 234, 3 A.K. Marsh. 234, 1821 Ky. LEXIS 92

DecidedApril 5, 1821

StatusPublished

This text of 10 Ky. 234 (Ogden v. Redman) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ogden v. Redman, 10 Ky. 234, 3 A.K. Marsh. 234, 1821 Ky. LEXIS 92 (Ky. Ct. App. 1821).

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Opinion

Judge Mij.ls

delivered the opinion.

This is a writ of error to reverse a decision of the court below, quashing an executson in an action of debt. The bourt has had great difficulty in determining that the bill of exceptions, taken to the opinion of that court, is sufficient to authorise the interposition of this court. Some doubts arc entertained whether, from the wording of that document, the whole ground taken in the court below is now presented to this court; and whether some extraneous matter, not set out, might not. have been the cause of the quashal. But as the motion appears to have been made without notice, and the defendant in the motion appears to have moved unsuccessfully to amend the supposed defect in the execution, we are rather led to conclude that the want of thirty days,between the teste and return, has been the sole ground which has caused the execution to be set aside.

The execution is dated oil the 2tnh July, 1*819, and fs [235]*235¡»ade returnable to the Saturday next succeeding the fourth Monday in the ensuing August, which was the 2btb > f that month, according to the commutation we have made, and leaves the space of thirty days, counting the day of the teste exclusive, and including the return day. We coo® ceive the expressions of the statute, “thirty days at least between the teste and return,” and not between the day of the teste and day ol return, does not warrant a departure from the general rule ef counting time named in a statute, to wit, of excluding one day and including the other, as decided in Pollard vs. Yoder, spring term, 1820, 2 Marshall, 267, and the cases there cited.

lathe com* h,ne> t¡le ofthe teste of P 'ocoss 13 to &■ the "i-e'tu’n d y exc ul-l>c!- or vie* V°r'a' Hardin for pl&i cliff.

The decision of the courtbelow must therefore be reversed with costs, and the cause remanded, with directions to over^ rule the motion to quash the execution with costs,

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Judge Mij.ls

delivered the opinion.

This is a writ of error to reverse a decision of the court below, quashing an executson in an action of debt. The bourt has had great difficulty in determining that the bill of exceptions, taken to the opinion of that court, is sufficient to authorise the interposition of this court. Some doubts arc entertained whether, from the wording of that document, the whole ground taken in the court below is now presented to this court; and whether some extraneous matter, not set out, might not. have been the cause of the quashal. But as the motion appears to have been made without notice, and the defendant in the motion appears to have moved unsuccessfully to amend the supposed defect in the execution, we are rather led to conclude that the want of thirty days,between the teste and return, has been the sole ground which has caused the execution to be set aside.

The execution is dated oil the 2tnh July, 1*819, and fs [235]*235¡»ade returnable to the Saturday next succeeding the fourth Monday in the ensuing August, which was the 2btb > f that month, according to the commutation we have made, and leaves the space of thirty days, counting the day of the teste exclusive, and including the return day. We coo® ceive the expressions of the statute, “thirty days at least between the teste and return,” and not between the day of the teste and day ol return, does not warrant a departure from the general rule ef counting time named in a statute, to wit, of excluding one day and including the other, as decided in Pollard vs. Yoder, spring term, 1820, 2 Marshall, 267, and the cases there cited.

lathe com* h,ne> t¡le ofthe teste of P 'ocoss 13 to &■ the "i-e'tu’n d y exc ul-l>c!- or vie* V°r'a' Hardin for pl&i cliff.

The decision of the courtbelow must therefore be reversed with costs, and the cause remanded, with directions to over^ rule the motion to quash the execution with costs,

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Bluebook (online)

10 Ky. 234, 3 A.K. Marsh. 234, 1821 Ky. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ogden-v-redman-kyctapp-1821.