Lubbock v. Cook , 49 Tex. 96 ( 1878 )

Roberts, Chief Justice.

Defendants in error moved to dismiss this case upon two grounds:

1st. That the service of the citation in error 'upon M. W.

Garnett, one of the attorneys of record for William Andrews, one of the defendants in error, did not amount to legal seiy vice on said Andrews, because the petition for the writ of error omitted to state the residence of said Andrews to be in Harris county, wherein the sheriff returned upon said writ said Andrews was not found; and neither the writ nor the petition in error stated in what county the said Andrews resided ; but the writ was issued to and served by the sheriff of Harris county on said attorney, the return stating that Andrews was not found.

The answer to this, is that said Andrews, being one of the plaintiffs in the suit in the District Court, the original petition represents him as being a resident of Harris county, which has often been held to be a sufficient guide to the clerk in issuing the citation in error.

The objection made to the service on Bussey, one of the defendants in error, was verbally withdrawn by the counsel who made the motion in presenting it to this court.

2d. The second ground of the motion, is that the writ of error was not sued out within two years from the rendition of the judgment, because the judgment was rendered on the 11th of August, 1874, and the bond for writ of error was filed on the 11th of August, 1876.

It is contended, for the motion, that the proper mode of computing time from an act done, (the rendition of the judgment,) is to include the day on which it is done; and that, by that rule, the bond was filed on the day “ after the expiration of two years” (allowed for a writ of error by the statute) “from the rendition of the judgment.” (Paschal’s Dig., art. 1496.)

The decisions upon this subject are conflicting:

In some of the States, it is held to be the correct rule generally. (Chiles v. Smith’s Heirs, 13 B. Monr.,-460; Brown v. Buzan, 24 Ind., 194.) In other States, it is held that the day on which the act is done should be excluded, unless there is something in the mode of expression, or some other good reason for requiring the rule to be changed. (Bigelow v. Wilson, 1 Pick., 485; Commercial Bank of Oswego v. Ives, 2 Hill, (N. Y.,) 355, and note.)

In England, it has been held, that “ wherever a right would be divested, or a forfeiture incurred, by including the day when the act was done, the computation will be made exclusive of it.” (Lester v. Garland, 15 Ves. Jr., 248, and note 258.)

In the ease of Burr v. Lewis, 6 Tex., 81, Justice Wheeler, referring to the case cited above from 1 Pick., says: “ It is a well-settled rule, respecting the computation of time, that where it is to be computed from or after a certain day from an act done, the day on which the act is done is to be excluded in the computation, unless it appear that a different computation was intended.” (See, also, O’Connor v. Towns, 1 Tex., 107; Hollis & Love v. Francois & Border, 1 Tex., 119.)

Though none of the reported cases, decided by this court, may be exactly in point as applicable to this, the reasoning and decisions, as far as they go, correspond with our own opinion, that, in a case like this, the proper rule is to exclude the day upon which the judgment was rendered, in computing the two years allowed for suing out the writ of error, which makes the bond to have been filed in time.

Motion overruled.