Franklin v. Holden and Newhall , 7 R.I. 215 ( 1861 )

In this case a verdict, as to Newhall, was rendered against the plaintiff, and he files his motion, under the statute, for a new trial. The defendants object to the motion, as not having been filed in time.

The Revised Statutes, Ch. 193, section 1, enact, that in all actions originally commenced in this court, the plaintiff against whom a verdict has been rendered, shall, by filing a written motion with the clerk within forty-eight hours after the rendition of the verdict, and paying the entry fixed by law for appeals, be entitled to a new trial, as of course. The verdict in this case was rendered on Saturday, November 2d, 1861, and the motion filed on Tuesday, November 5th, 1861. Including Sunday in the computation of time, the motion was not seasonably filed.

As a general rule, in computing the time within which an act is limited to be done, under a statute, Sunday is reckoned, unless specially excepted. So, where the act is to be done a certain number of days after verdict, the day of the verdict is not reckoned; and where the time is computed by days, and, one or more Sundays intervening, the last day falls upon Sunday, there are cases in which this day has not been counted as ajudicial day. But such is not this case. In Thayer v. Felt, 4 Pick. 354, the statute authorized an officer to adjourn a sale not exceeding three days, and the third day falling upon Sunday, he adjourned it to the succeeding Monday. The sale was declared valid. The court say, that when the time limited within which an act is to be done may or may not include Sunday, the probable intent of the legislature is to govern. When the language of a statute is ambiguous, the intent, so far as it can be gathered, should control. And when the act to be done, and the time within which it is to be done, are such that the act cannot be done in judicial time, it may be proper to extend the time by construction; because every statute is to be construed reasonably, and to have effect, if possible.

The statute in question is unusual and peculiar, both in regard to the right and the mode of its exercise. The time is limited not by months or days, but by hours. If it be said that the time is brief, it may be said, also, that the act to be done is a mere formal act, requiring little time in its performance. The language of the statute is plain, and it must be an extreme case, under our practice, in which a party may not avail himself of its provisions. We cannot, therefore, extend its provisions by construction.

The motion of the plaintiff, therefore, cannot be entertained. Motion for a new trial as to Newhall overruled.