Rayl v. Thurman

123 So. 853, 156 Miss. 1, 1929 Miss. LEXIS 363

Opinions

The decree in this case, from which the appeal is prosecuted, was rendered on the 29th day of December, 1928. The petition and bond for appeal were filed, and the bond approved, on June 29, 1929.

Appellee moves to dismiss the appeal, because, when prosecuted it was barred by the statute of limitations. The applicable statute of limitations, chapter 153, Laws 1926 (Hemingway's Code 1927, section 2650), follows: "Appeals to the supreme court shall be taken within six months next after the rendition of the judgment or decree complained of, and not after, saving to persons under a disability of infancy or unsoundness of mind the like period after the disability shall have been removed."

The motion to dismiss will be taken as a plea in bar of the appeal. Tutwiler v. Gibson, 117 Miss. 879, 78 So. 926. It will be observed that the statute provides, among other things, that appeals to the supreme court shall be taken "within six months next after the rendition of the judgment or decree complained of, and not after."

We think the appellee's motion must be sustained under the authority of Williams Bros. v. Bank of Blue Mountain, 132 Miss. 178, 95 So. 843, 845. In that case the court 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 C.P.D. 233; Daley v. Anderson, 7 Wyo. 1, 48 P. 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."

The statute of limitations, it will be observed, provides that the appeal shall be taken within six months from the rendition of the judgment or decree appealed from. The decree in this case, as stated was rendered on the 29th day of December, 1928. There being no parts of days in law, the decree was alive and effective during the entire day of December 29, 1928; therefore that day is to be counted in determining how many calendar months transpired before the appeal was taken. The result is that the six calendar months within which appellant could have appealed expired at midnight on June 28, 1929.

Motion sustained.