Rice v. Beavers & Co.

Rice v. Beavers & Co. Assumpsit. (Decided April 20, 1916. 71 South. 659.) 1. Time; Compensation. — Under § 11, Code 1907, in calculating the time as fixed by a statute within which an act may be done, the first day is excluded, and the last day included. 2. Same; Within. — The use of the word “within” as a limit of time or degree or space, embraces the last day or degree, or entire distance fixed, or covered by the limit. 3. Bill of Exceptions; Presentation; Time. — Where bill of exceptions was presented 92 days after judgment entered, it was not presented within the time required by § 3019, Code 1907, and on motion must be stricken. Appeal from Walker Circuit Court. Heard before Hon. J. J. Curtis. Action by J. H. Beavers & Co., against Elver L. Rice. Judgment for plaintiff and defendant appeals. Affirmed. Transferred from Court of Appeals. W. G. Peebles, for appellant. J. B. Powell, for appellee. [MAJORITY — THOMAS, J.] THOMAS, J. The cause is submitted on motion to strike bill of exceptions, because not presented to the trial judge within the time required by law. When a statute fixes a time within which an act may be done, the first day must be excluded and the last day included, to compute it. — Code 1907, § 11; Oberhaus v. State, ex rel. McNamara, 173 Ala. 483, 55 South. 898. Bills of exceptions may be presented at any time “within ninety days from the date on which judgment is entered and not afterwards.” — Code 1907, § 3019. The use of the word “within,” as a limit of time, or degree, or space, embraces the last day, or degree, or entire distance, covered by the limit fixed.—Hamilton v. State, 101 Tenn. 417, 47 S. W. 695. The judgment in this case was entered on May 19, 1915, and the bill of exceptions was presented on the 19th day of August, 1915, 92 days after the entry of the judgment. The motion to strike the bill of exceptions is granted, and the bill of exceptions is stricken. There being nothing before the court for review, the cause is affirmed. Affirmed. Anderson, C. J., and Mayfield and Somerville, JJ., concur.