Albrecht v. Uranium Services, Inc. , 596 P.2d 1025 ( 1979 )

MAUGHAN, Justice:

Uranium Services, Inc., (hereafter Uranium), appeals from a summary judgment quieting title to mining claims in plaintiffs, (hereafter Albrecht). We affirm, and award costs to Albrecht.

The judgment was based on a complaint, answer, counterclaim, affidavits and interrogatories. The complaint stated a prima facie case as to complying with the State and Federal mining laws, with a claim of continuous possession and performance of annual work.

Uranium filed claims on top of those of Albrecht. The Albrecht claims were staked out in 1954; the Uranium claims were filed in 1966 and 1969.

Uranium’s affidavit asserted Al-brecht had abandoned his claims in 1966. No other assertions or facts were stated showing such abandonment. The affidavit also alleged Uranium’s ownership, and averred it “has filed locations” over such claims. No statement is made as to what was done specifically. In less than positive fashion, the affidavit says “it appears” that Al-brecht had not done any work on his claims for many years. The affidavit was totally conclusory in nature, and the trial judge properly ruled it was not sufficient to meet Uranium’s burden of showing the presence of a material fact requiring trial.¹

Another issue raised by respondent is that of the timeliness of the appeal. In re Lynch’s Estate² is cited in support of such claim. The analysis in Lynch has been responsible for some confusion in this area of the law. Even so, under Lynch, Uranium’s appeal was timely filed. Respondent states the time commenced to run July 5, 1978 (we assume it to have been entered in the Register of Actions on that day), and Notice of Appeal was not filed until August 7, 1978. The filing was timely because August 5, 1978 fell on a Saturday, and the following Monday was the next day not excluded by Rule 6, U.R.C.P.

However, owing to the frequency with which this question is presented to us, and because the amended Rule 73 does not appear in Utah Rules of Civil Procedure as published in Vol. 9B, U.C.A. 1953, or the 1978 Pocket Supplement, we desire to make a restatement of the law as it applies to the time within which an appeal may be taken to this Court.

In part, Rule 73(a), U.R.C.P. formerly provided:

When an appeal is permitted from a district court to the Supreme Court, the time within which an appeal may be taken shall be one month from the entry of the judgment or order appealed from

This rule was amended on the 14th day of June, 1976. The first paragraph of the amended rule is:

When an appeal is permitted from a district court to the Supreme Court, the time within which an appeal may be taken shall be one month from the date of the entry [in the Register of Actions of the judgment or order appealed from unless a shorter time is provided by law, except that upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal not exceeding one month from the expiration of the original time herein prescribed. Such an extension may be granted by the district court before or after the expiration of the original time herein prescribed; but if a request for an extension is made after the original time prescribed by this subdivision has expired, it shall be made by motion with such notice as the district court shall deem appropriate. [Emphasis supplied.]

Our Rule 6 controls the computation of time. Paragraph 6(a) is as follows:

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period' of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.

Thus, the date of the month on which the period begins to run is excluded. The same date of the following month is included. For example, if the judgment or order appealed from were to be entered in the Register of Actions on the 6th of July, the last day on which a Notice of Appeal could be filed would be the 6th of August, unless such 6th of August fell on “a Saturday, a Sunday, or a legal holiday.” In such latter event, the period would run “until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.”

The foregoing analysis holds true throughout the year except for the dates of January 30 and 31, and in all but leap years, January 29. A period commencing to run on those dates concludes on the last day of the following February — again subject to Rule 6(a), of course.

WILKINS and HALL, JJ., concur.

1 . Walker v. Rocky Mountain Recreation Corporation, 29 Utah 2d 274, 508 P.2d 538 (1973); Rule 56(e), U.R.C.P.

2 . 123 Utah 57, 254 P.2d 454 (1953).