Daily capital journal. (Salem, Oregon) 1903-1919, 1911-03-11
SUPREME PASSES
UPON QUESTION
Continued from Page two)

void, neither they nor the appeal
therefrom would affect the judgment
of February 26, By an appeal from
the void Judgment the records might
be purged of such useless matter, but
1t is apprehended that the power of
the appellate court could go no
further than this.
The order of September 80 in terms
allowed the appellant up to and in
Guiding the second day of October,
1870" in which to file a transcript on
appeal in this court. The appellants
contend that because October 2, 1910,
was a Sunday they were in time by
filing the transcript on the succeed
ing Monday, October 3, and they rely
upon section 531, l.. o. L.: "The
time within which an act Is to be done
as provided in this code shall be COM
puted by excluding the first day and
including the last, unless the last day
fall upon Sunday, Christmas or other
nonjudicial day, in which case the last
day shall also be excluded" All the
cases hitherto decided by this court
involving construction of this sec
ton are cases in which a certain num-
Der of days were allowed by order
within which a given act might be
performed. No case has arisen hith
erto where this section has been ap-
piled in constituting an order Of court
allowing an act to be done by GER
tain date or, in the language of the
order in question, "up to and includ-
ing" a given date. The language of
the concluding paragraph in Wachs-
muth V, Routledge, &c Or 307 is
seemingly in conflict with this state
ment, but an examination of the tran
script in that case discloses that the
order in question there allowed 20
days within which to file an abstract
and by computation it appeared that
the 20 days expired on Sunday, No
vember a. By applying this section to
the computation of 20 days, the last
of which was Sunday, the court de-
termined that the filing was in time
on the 18th.
The question then is what construc-
ton shall be given to this order Of
the court allowing the appellants up
to and including Sunday, October 2,
1910, in which to life the transcript.
1t is we'll to bear in mind that the
statute provides for computation of
time in which an act is to be be done
as provided in the code. The reason
for this is plain. The legislature in
prescribing that an act should be done
in 80 days or any other number of
days after given event could not,
of course, foresee what situations
would arise to which this rule was
applicable, and as conventional rule
for computing time to be applied in
general to such cases prescribed that
when the last day fell upon Sunday
1t should be excluded. Many respect
able authorities have laid down the
rule that under such circumstances
the act could not be performed later
than the preceding Saturday, but the
practice is different in this state and
the more liberal rule is enforced of
allowing the act to be done on the
succeeding Monday, when it depends
upon given number of days the last
of which is Sunday. But this is a rule
of construction as applied to an act
to be done as provided in the code,
and not to cases where orders pre-
scribe otherwise in express terms.
In Wachsmuth v. Routledge supra, it
was contended upon statute requir-
ing an appellant to file the transcript
by the second day of the next regular
term of the appellate court there
after" that the filing should take
place before the second day of the
term, but the court held that it
was in time of the transcript was
filed on the second day, but did not
extend the rule further By parity of
reasoning, if it is proper to construe
the order Of September 30 by this
rule, the filing of the transcript could
not take place after the day allowed
in the order, even though that day
be Sunday. The order must be con-
strued, not by the rule of the statute,
because the statute expressly refers to
an act to be done as provided in the
code, according to its own terms. The
order was made by consent of the
parties having knowledge of the cal
endar and being fully aware of the
days of the week involved. The court
expressly included Sunday, October
2, in the order. 1t had right to
make the order in those terms. The
fact that it was thus made by the con-
sent of the parties makes 1t in a
sense their contract of record, and we
cannot so construe it under these cir
cumstances as to exclude Sunday
when it expressly states that Sunday
was included.
1t follows that filing the transcript
after the time thus limited by the