Opinion
Opinion filed June 10, 1935.
1. TIME.
Under statute allowing appeal from magistrate's judgment within two days after rendition of judgment, Sundays exclusive, defendant had all day Monday to perfect appeal from judgment rendered on Friday (Code 1932, section 9019).
2. EVIDENCE.
Courts will take judicial notice of day of week upon which particular day of month fell.
3. EVIDENCE.
Circuit court's dismissal of appeal taken from magistrate's judgment rendered February 16, 1934, by filing pauper's oath in lieu of appeal bond on February 19, 1934, on ground oath was not filed within two days as required by statute, held error, where almanac exhibited in Supreme Court showed February 18, 1934, fell on Sunday, notwithstanding that almanac was not part of record and that no showing was made to circuit court that February 18, 1934, fell on Sunday, since courts will take judicial notice of day of week upon which particular day of month fell (Code 1932, section 9019).
4. APPEAL AND ERROR.
Supreme Court could afford relief to defendant appealing from circuit court judgment dismissing appeal from magistrate's judgment, although defendant did not make motion for new trial in circuit court, since motion for new trial is not prerequisite to review of errors apparent from record proper.
5. TIME.
Statute allowing appeal from magistrate's judgment "within two entire days thereafter, Sundays exclusive," does not authorize dismissal of appeal from magistrate's judgment in circuit court merely upon showing that appeal for pauper's oath filed in lieu of appeal bond was not filed within two days after judgment, unless it also appears that the "two entire days" were exclusive of Sunday (Code 1932, section 9019).
FROM WILSON.Error to Circuit Court of Wilson county. — HON. HARRY CAMP, Judge.
Suit by F.V. Williams against Bud Parrish. Judgment of the circuit court dismissing an appeal from a magistrate's judgment for the plaintiff, and affirming such judgment, and the defendant brings error. Reversed and remanded.
O.B. STARNES, of Lebanon, for plaintiff in error.
ADDISON BARRY, of Lebanon, for defendant in error.
This record was filed for writ of error to review a judgment of the circuit court for a small sum of money rendered against the defendant below.
The suit was instituted before a magistrate and he gave judgment against the defendant on February 16, 1934. On February 19, 1934, the defendant filed with the magistrate a pauper's oath, in lieu of an appeal bond, and the papers were returned by the magistrate to the circuit court.
The case came on for hearing in the circuit court, and the minute order recites that "the plaintiff moved the court to dismiss the appeal of the defendant's from the justice's court because the oath which is provided for poor people in lieu of an appeal bond was not filed within the two days required by the statute." This motion was sustained by the court, the appeal dismissed, and the judgment of the justice of the peace was affirmed.
The defendant refers the court to the 1934 calendar, which shows that February 16 of that year, the day on which the magistrate rendered judgment, fell on Friday. Section 9019 of the Code allows an appeal from a magistrate's judgment "within two entire days thereafter, Sundays exclusive." February 18, 1934, falling on Sunday, as a matter of course the defendant had all of February 19, 1934, in which to perfect his appeal from the aforesaid judgment.
It is said in behalf of the plaintiff that there was no evidence or showing made to the trial court that February 18, 1934, fell on Sunday, that the almanac exhibited in this court is not part of the record, and in the absence of some proof of the coincidence of February 18, 1934, with Sunday, the point made by defendant is not available.
This is a mistaken view. All courts will take judicial notice of the day of the week upon which a particular day of the month fell. It is said that the almanac is used when such a question arises, not strictly as evidence, but like the statutes for the purpose of refreshing the memory of the court and jury. State v. Morris, 47 Conn. 179. And it was said by a noted English judge that the almanac was part of the law of England. Tutten v. Darke, 5 Hurl. N., 649. The authorities are reviewed and the law declared as indicated by Judge HUGHES in Cook v. Carmichael, 3 Tenn. App. (3 Higgins), 477. For other cases, see notes, 124 Am. St. Rep., 49, 4 L.R.A., 35.
It is further insisted that this court can afford the defendant no relief from the judgment below because of the failure of the latter to enter a motion for a new trial in the circuit court. A motion for a new trial, however, is not a prerequisite to the review of errors apparent from the record proper — that is, from the pleadings and minute entries. Nashville, C. St. L.R. Co. v. Smith, 147 Tenn. 453, 249 S.W. 377; Board of Equalization v. Nashville, C. St. L. Ry., 148 Tenn. 676, 257 S.W. 91.
Section 9019 of the Code does not authorize the dismissal of an appeal from the magistrate's judgment in the circuit court merely upon a showing that the appeal or pauper's oath was not filed within two days after judgment. It must also appear that "two entire days" were exclusive of Sunday.
Reversed and remanded for further proceedings. Plaintiff will pay the costs of this court, and the costs below will await the outcome.