Woods v. Patrick

3 Ky. 457

• Court: Court of Appeals of Kentucky
• Decided: May 23, 1808
• Status: Published

Opinion

Edwards, Ch. J.

delivered the following opinion of the court: — This was a suit ⅛ chancery, originally brought by Woods against Patrick and wife, The only question necessary to be decided, is, whether the cause was, or was not, legally removed from the Fayette circuit court, to the Clarke circuit, by virtue of the order for a change of venue, awarded by the honorable Samuel M’Dowel, on the eighth day of February i 805 ; and which was, on the same day', together with the expenses of removal, deposited in the clerk’s office ? This question has been already determined by this court, in the case Woods vs. the judges of the Fayette circuit court; in which a peremptory mandamus was awarded, commanding them to permit the papers to be removed pursuant to said order; they having entered art order upon their record, that the cause should not be removed, because, as they alleged, the order for chánge of venue, had not been deposited in proper time.

It will only be necessary now to observe, that it appears from the act of assembly, that the March term of the Fayette circuit court commenced On the tenth day of the month, so that the order was deposited with the clerk thirty days (the time required by law) before, the commencement of the next term, considering the day of depositing the order as inclusive, and the first day of,the court as exclusive. And we are of opinion, the days should be calculated in that way.

The consequence is, that the Fayette circuit court ought not, at the said March term, to have made any order, or had any proceedings in the cause, or to have taken’ jurisdiction thereof ; especially, when objected to by the party.- — —Decree reversed. ,