Ewing v. Bailey, 5 Ill. 420, 4 Scam. 420 (1843)

Dec. 1843 · Illinois Supreme Court

5 Ill. 420, 4 Scam. 420

John Ewing et al. v. Jacob Bailey.

Error to Franklin.

1. TrME — computation of. The proper mode of computing time, when an act is to be performed within a particular period from or after a specified day, is to exclude the day named, and include the day on which the act is to be done, ^(a)

2. Same — same—on appeal. In computing the twenty days within which an appeal bond is to be filed in the clerk’s office by the justice of the peace taking the same, the day on which the bond is taken is to be excluded, and the day of filing the same included. But where the bond is not filed to dismiss the appeal, for that cause. the twenty days, it is error tor the court

The proceedings in this cause in the court below were had at the April term, 1842, before the Hon. Walter B. Scates.

Willis Allen and J. A. McDougall, for the plaintiffs in error.

J. C. Conkling, for the defendant in error.

(a) Cases Citing Text. Under statute which requires that sixty days shall intervene between first publication of notice and term of court, day of first publication should be excluded and first day of term included. Vairin v. Edmonson, 5 Gilm. 270, 272.

Under warrant of attorney authorizing confession of judgment “ from and after date ” thereof, judgment cannot be confessed on day warrant bears date. Waterman v. Jones, 28 Ill. 54.

Under warrant of attorney authorizing confession of judgment “at any time thereafter,” judgment may be confessed on day warrant bears date. Cummins v. Holmes, 11 Bradw. 158, 161.

Rule stated in head note, applied to computation of period within which Governor must return vetoed bill to General Assembly under Constitution of . 1848. People v. Hatch, 33 Ill. 9, 138.

Rule applied to computation of period within which summons may be served. Bowman v. Wood, 41 Ill. 203, 205.

Where statute required six days’ publication of notice in newspaper, it was held that publication on Sunday could not be counted as one of six days. Scammon v. Chicago, 40 Ill. 146.

In computing period within which notice to terminate tenancy may be given, day of execution of lease should be excluded and last day of term included. Higgins v. Halligan, 46 Ill. 173, 177.

Statute requiring three weeks’ notice held satisfied by publication of first insertion on March 16th and last on March 30th. Madden ¶. Cooper, 47 Ill. 359.

Rule that first day shall be excluded and last day included, applied to computation of period for which notice shall be published. Harper v. Ely, 56 Ill. 179, 189.

Under deed requiring notice of sale, by publishing notice in newspaper “ten days before such sale,” notice of sale on May 13th, published on May 2d, and each day thereafter except Sundays, nine insertions in all, held sufficient. Cushman v. Stone, 69 Ill. 516.

If power of sale in trust deed stipulates for ten days’ notice, Sunday should be included in computation, as notice is not to bring party into court. Kingsbury v. Buckner, 70 Ill. 514.

Rule stated in head note-applied to computation of period within' which money to redeem from sheriff’s sale must be paid. Roan v. Rohrer, 72 111. 582.

Where assessment on insurance policy is to be paid within thirty days from date of notice, day of receipt will be excluded. Protection, etc. Ins. Co. v. Palmer, 81 Ill 88.

If statute requires notice to be published three times for three successive weeks, publication made on Friday and Saturday of first week, on each day of next week, and from Monday to Thursday, inclusive, of third week, is compliance with statute, although three full weeks have not elapsed between first and last publications. Andrews v. People, 84 Ill. 28.

Rule stated in head note applied to computation of period within which new trial may be applied for in ejectment. Pugh v. Reat. 107 Ill. 440, 442.

By statute, giving of notices is governed by rule stated .in head note modified by excepting Sunday when that is last day. R.S. 1874, Notices ch. 100, § 6 ; S. & C.’s Stats, p. 1675 ; Cothran’s Stats. (1885) p. 1010.

Tjbeat, Justice,

delivered the opinion of the court: [* 421] Bailey recovered a judgment against Ewing, before a justice of the peace, on the 16th of April, 1842. On the 5th of May following, Ewing entered into an appeal bond before the justice; which bond and the papers of the case, the justice filed with the clerk of the circuit court on the 25th of the same month. The circuit court, on the motion of Bailey, dismissed the appeal. That decision is now assigned for error.

The act of February 3d, 1840, which authorizes a party to take an appeal, by entering into bond before the justice, requires the justice to file the bond and the other papers belonging to the case, in the office of the clerk of the circuit court, within twenty days after the approval of the bond. The only question sought to be decided in the case is, whether the justice complied with this provision of the statute. The proper " mode of computing time, where an act is to be performed within a particular period from or after a specified day, is to exclude the day named, and include the day on which the act is to be done. For example; a .promissory note executed on the first day of the month, and payable in twenty days from date, falls due on the twénty-first of the month ; in reckoning the time, the day of the date is excluded, and the day on which the maker is required to pay is included. By this rule, the day on which the appeal bond was executed was to be excluded in the computation of the twenty days, and the justice had the whole of the 25th of May in which'to file the papers. He having filed them on that day, the court ought not to have dismissed the appeal. Whether filed within the twenty days or not, it was error to dismiss the appeal, as .this court has decided at this term, in the case of Little v. Smith, ante 400.

The judgment of the circuit court must be reversed with costs, and the cause remanded for further proceedings.

Judgment reversed.