State ex rel. Kerr v. Sheehan

55 Mo. App. 66, 1893 Mo. App. LEXIS 253

• Court: Missouri Court of Appeals
• Decided: November 7, 1893
• Status: Published

Opinion

Biggs, J.

The defendant is one of the justices of the peace of the city of St. Louis. On the nineteenth day of January, 1893, he entered a judgment by default in a cause then pending before him, in which the relator was plaintiff and the St. Louis car company was the defendant. On the thirtieth day of the same month the defendant in that action filed a motion to set aside the judgment, which motion the defendant justice sustained. The present action was begun in the circuit court by a petition for mandamus upon appellant to show cause why the said order setting aside the judgment should not be annulled. The ground of the complaint was that the motion was not filed within ten days after the rendition of the judgment. The defendant, in his return, admitted the facts, but justified his action on the ground that the tenth calendar day after the judgment was entered was Sunday, and that, under a proper construction of the statute concerning the computation of time, when the last day for doing the act falls on Sunday, the act may be done on the following Monday. The court sustained a demurrer to the return, and, the defendant refusing to plead further, the order setting aside the judgment against the car wheel company was annulled and for naught held, and the cost's of the present proceeding ordered to be taxed against the defendant. Prom that judgment the defendant has appealed.

The statute (section 6237, Revised Statutes, 1889) provides: “Every justice of the peace shall have power, on the application of the party aggrieved, or his agent, and for good cause shown, to set aside the judgment of nonsuit and by default above directed, upon the payment of all costs then accrued. Every such application shall be made within ten days, or twenty days if the party be a nonresident of the state, after the rendering of the judgment,” etc.

Was the defendant’s return'good as a matter of law? The inquiry involves the construction of the fourth clause of section 6570 of the Revised Statutes of 1889, promulgating additional rules for the construction of statutes, which clause reads: “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 he Sunday it shall he excluded. ”

In the case of Patrick v. Faulke, 45 Mo. 312, the supreme court with some hesitation held that, when the last day within which a statute prescribed that an act should be done fell on Sunday, such act must be performed on the previous Saturday. It is argued that this decision is not controlling authority in the present action, because the supreme court had under considertion the mechanics’ lien act, which at that time was construed strictly. It was said in the opinion in that ease that, although the mechanics’ lien law was highly favored, yet it gave extraordinary rights to the mechanic or material man, and that, for a party to avail himself of its advantages, he must bring himself strictly within its terms. So, in this case, the ten days allowed for filing a motion to set aside a judgment of nonsuit or default are days of grace merely, and the party who seeks the privilege which- the law thus affords must bring himself within the strict letter of the act.

Holding, as we do, that the decision of the supreme court in the Patríele case is applicable to and decisive of this case, we must affirm the judgment.

All the judges concur.