CRAWFORD & CO., APPELLANTS,
v.
H. & G. FEDER, APPELLEES
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Crawford & Co. appealed a lower court decision, and H. & G. Feder moved to dismiss the appeal for lack of proper service of citation. The Florida Supreme Court held that the citation was served within the statutory twenty-five-day requirement and denied the motion to dismiss.
The citation was properly served in due time. Either the first day of the term can be counted while excluding the day of service, or the day of service can be counted while excluding the first day of the term, and either method satisfies the statutory requirement of twenty-five days' notice.
“the citation in law appeals shall be served in the same manner and with like effect as a wilt of scire facias axl audieudmn. or roves, and the Statute,* *1 2, p. 848, McClellan's Digest, enacts that this writ shall be served at least twenty-live days previous to the first day of the term" of this court to which it is returnable.”
Establishes the statutory requirement for service of citation in law appeals—at least twenty-five days before the first day of the term.
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Join FLexlaw to unlock all legal intelligenceAn appeal was entered in October. The citation was served on December 19th. The first day of the pending term of the Florida Supreme Court was January…
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Eaxey, C. .1. :
This appeal was entered in October last, the citation was served on the 19fh day of December, and the 33th day of the present month, January, was the first day of the pending term of this court. Eule 101 of the Circuit Court Common Law Rules provides that the citation in law appeals shall be served in the same manner and with like effect as a wilt of scire facias axl audieudmn. or roves, and the Statute,* *1 2, p. 848, McClellan’s Digest, enacts that this writ shall be served at least twenty-live days previous to the first day of the term” of this court to which it is returnable. If either the day upon which the citation was served or the first day of the term, or return day, can be counted, the requirement of the statute has been met. The law is that one or the other of these (lavs may be counted unless the statute calls for clear ,oi* entire, (lays; which the language of this statute does not do, in our 'judgment, and according to the better authority. State vs. Town of Winter Park, 25 Fla., 375; Garner & Nevill vs. Johnson, 22 Ala., 494; Thomas vs. Afflick, 16 Penn., St., 14; Northrop vs. Cooper, 23 Kan., 432; Stebbins vs. Anthony, 5 Colorado, 348. Some courts count the day of service where the statute requires a certain number of days previous notice*, and exclude the return day. Garner & Nevill vs. Johnson, Thomas vs. Afflick, supra, Northrop vs. Cooper, 23 Kan., 432; Hagerman vs.
O. B. & S. Association, 25 O. St., 186; while others count the return day and' exclude the day of service. State vs. Town Winter Park, 25 Fla,, 371; King vs. Justices, 4 N. & M. (30 Eng. Com. Law,) 380; Vairin vs. Edmondson, 5 Gilman, 270; Forsyth vs. Warren, 72 Ill., 68; whereas others hold that one day may Ice counted or the other omitted, without indicating which is tlie better rule. Den vs. Fen, 8 N. J. (Law), 303; Day vs. Hall, 12 N. J. (Law,) 203; Walsh vs. Boyle, 30 Md., 263. Our rule of court, Common Law Rule OB, has provided that in all cases in which any particular number of days, not expressed to be clear days is prescribed by the rules of practice of the courts the same shall be reckoned exclusively of the first day and inclusively of the last, unless the last shall happen to fall on Sunday or on certain other specified days, and then the time shall be reckoned exclusively of the last day also. If it be that the language of the statute under consideration puts it beyond the influence of the rule last mentioned and the authorities on which the rule may be regarded as based, and that consequently the first day of the term cannot be counted, we still think that the day of servicie can be counted upon the Alabama and Pennsylvania cases first cited above, as in law in such cases a day is regarded as an indivisable point of time, (Bigelow vs. Wilson, 1 Pick., 487; Kimm vs. Osgood, 19 Mo., 61; Lang v. Phillips, 27 Ala., 311,) the law taking no notice of fractions of a, day except in questions of priority of rights, or conflicting rights. Broom’s Legal Maxims, 142.
Counting the first day of the term and excluding the day of service, or counting the latter day and excluding the former, the citation was served in due time. The use of the expression in Driggs vs. Higgins, 19 Fla., 103; as to inter tuning (laya, was not in our opinion intended to conflict with this conclusion. Vairin vs. Edmondson, Forsyth vs. Warren, supra.
The motion is denied, and it wiil be so ordered.
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Jacksonville v. Broughton, 38 Fla. 139 (Fla. 1896)…on which they severally relied. The assignments of error were filed in the proper clerk’s office within the time prescribed by Special Rule 4, regulating appeals in chancery, that is, within ten days after the appeal was entered. Crawford vs. Peder, 27 Fla. 523, 8 South. Rep. 642. It is contended in the brief that the fourth ground to dismiss is, that no assignment of errors was filed within time by appellants except by the Railway Company. As a matter of fact assignments of errors were filed by both appel…
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Velazquez v. State, 648 So. 2d 302 (Fla. 5th DCA 1995)…es of deeds or liens filed on the same day, courts generally have not applied such exceptions in criminal cases. Parker v. State, 61 Md.App. 35, 484 A. 2d 1020, 1022 (1984); State v. Brown, 443 S.W. 2d 805, 806 (Mo.1969). See also Crawford v. Feder, 27 Fla. 523, 525, 8 So. 642, 642 (1891) ("[A] day is regarded as an indivisible point of time, ... the law taking no notice of fractions of a day except in questions of priority of rights, or conflicting [*304] rights”) (citations omitted). In this regard, we n…
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O.D. Priest, Jr. v. Plus Three, Inc., 447 So. 2d 338 (Fla. 4th DCA 1984)…on v. Muntzing, 24 Colo.App. 1, 131 P. 281 (1913). Service of a citation which was required to be served “at least twenty-five days previous to the first day of the term” was adequate when measured according to the general rule in Crawford v. Feder, 27 Fla. 523, 8 So. 642 (1891). See also Annot. 98 A.L.R.2d 1331, 1343 (1964). Appellees, Saarinen, bring to our attention a case in which both first and terminal days are excluded from the computation. In Blanton v. State ex rel. Miller, 156 Fla. 694, 24 So. 2…
Authorities Cited
- Driggs v. Higgins, 19 Fla. 103 (Fla. 1882)
- State v. The Town of Winter Park, 25 Fla. 371 (Fla. 1889)