Walker v. Walker

42 Ala. 489

Opinion

A. J. WALKER, C. J.

The decree in this case is dated, and was entered on the 20th November, 1866, and is to be regarded as enrolled on that day. — Ansley v. Robinson, 16 Ala. 793. The appeal was taken on the 20th February, 1867. The time within which an act is required to be done is computed by excluding the first and including the last day. — Code, § 13. According to this computation, the appeal was taken within three months from the enrollment of the decree, as required by the 30th section of the 4th article of the constitution. The motion to dismiss the appeal, therefore, is overruled.

2. The register’s order of publication required that the defendant should answer on or before the 8th day of May, 1866. The decree pro confesso was taken on the 14th day of May, 1866, only six days after the appointed time of •answering. The 4th section of the act of 8th February, 1858, p. 230, prescribes that the decree pro confesso may be entered after thirty days from the time specified in the order of publication to answer. The decree pro confesso was, therefore, taken too soon, and the court erred in proceeding to a decree final, ex parte, as to the defendant upon the decree pro confesso.

Reversed and remanded.