Thrower v. Brandon

Thrower v. Brandon. Statutory Action in nature of Ejectment. 1. Service of process; when cause stands for trial. — When process is served on 24th December, returnable to a term of the court which begins on the 14th January following, the .cause stands for trial at that term (Code, § § 11, 2731), according to statutory computation and the settled practice. Appeal from the Circuit Court of Dale. Tried before the Hon. Jesse M. Carmichael. This- action was brought by "W. N. Brandon and Mattie Brandon, against Andrew Thrower, and was commenced on the 21st December, ■ 1888. The summons was returned “executed this 24th December, 1888¡” The January term of the court, 1889, commenced on the 14th day of the month; and on the 16th day of January a judgment by nil (licit was entered against the defendant. This judgment is now assigned as error, on the ground that it was prematurely taken. Chas. Wilkinson, for appellant, cited Code, §§ 11, 2663, 2731; Moore v. Phillips, 8 Porter, 467; Gregg v. Gilmer, 54 Ala. 429. J. E. P. Flournoy, contra, cited Cummings v. Richards, 32 Ala. 460; McCollum v. Hogan, 3 Stew. '575; Bryant v. Simpson, 3 Stew. 339. [MAJORITY — MoCLELLAN, J.] MoCLELLAN, J. There is nothing in the objection relied on to operate a reversal of the judgment in this case. In determining whether service of summons has been perfected twenty days previous to the return term, the first day of the term is the last day of the period limited, and if by including this day, as required by section 1! of the Code, twenty days have elapsed after the day of service, the case stands for trial at that term. Such has been, we believe, the universal understanding and practice of the bar and nisi prius courts, and is, we do not doubt, the sound construction of section 2731 of the Code. — Garner & Neville v. Johnson, 22 Ala. 494, 501. The judgment of the Circuit Court is affirmed.