Sullivan v. Smith , 209 Ga. 325 ( 1952 )

209 Ga. 325 (1952) 72 S.E.2d 318

SULLIVAN
v.
SMITH.

17923.

Supreme Court of Georgia.

Submitted July 14, 1952. Decided September 2, 1952.

J. P. Dukes, for plaintiff in error.

Albert A. DeLorge, contra.

CANDLER, Justice.

1. In those cases to which the pleading and practice act of 1946 is applicable, the defendant is required to answer the petition within thirty days after service of the petition and process, and all demurrers and pleas of the defendant shall be filed in or before the time stated in the process as the appearance day. Ga. L. 1946, pp. 761, 773 (Code, Ann. Supp., §§ 81-201, 81-301).

2. When a number of days is prescribed by law for the exercise of a privilege, or the discharge of a duty, only the first or the last day shall be counted and, in computing the number of days, the first or the last day should be excluded. Code, § 102-102 (8); Rusk v. Hill, 117 Ga. 722 (1) (45 S.E. 42); Walker v. Neil, 117 Ga. 733 (2) (45 S.E. 387); Felker v. Still, 160 Ga. 104, 105 (1) (127 S.E. 609).

3. In this case the record shows that the defendant was served with a copy of the petition and process on February 14, 1952; that he filed a general demurrer to the petition on March 15, 1952; that the court sustained the demurrer and dismissed the petition on March 18, 1952; and that the ruling on the demurrer was not excepted to; but that, on April 4, 1952, the plaintiff filed a motion to vacate and set aside the judgment on the demurrer, alleging that it was null and void because the demurrer was not filed within thirty days after service of the petition and process as required by law. Applying the rules announced in the two preceding notes, and taking judicial cognizance of the fact that the month of February, 1952, had twenty-nine days, it was not erroneous, as contended, for the court to deny the plaintiff's motion; and this is true because the demurrer was filed within the time allowed by law.

Judgment affirmed. All the Justices concur, except Atkinson, P.J., and Almand, J., not participating.