
    Hattiesburg Grocery Co. v. Tompkins.
    [71 South. 866.]
    1. Time. Computation. Days excluded. Limitations. “Next". Fraction of days. n
    
    Under Code 1906, section 3103, providing that all actions on judgments of court of record shall be brought within seven years, “next” after rendition thereof, and not after, and section 1606, providing that in all cases not specially mentioned when any specific number of days shall be prescribed, one day shall be excluded and the other included, where judgment was rendered on Oct. 31, 1907, and suit thereon was begun Oct. 31, 1914, such suit was not barred by limitations, since the first day is excluded by the use of the word “next” in. section 3103.
    2. Time. Fractions of days. Limitations.
    
    The law does not recognize any fractional part of a day in computing the period for the bar of an action by lapse of time.
    Appeal from the circuit of Forrest county.
    Hon J. M. Arnold, Judge.
    Suit by the Hattiesburg Grocery Company against J. C. Tompkins. From an order overruling plaintiff’s demurrer to defendant’s plea, plaintiff appeals.
    The facts are fully stated in the opinion of the court.
    
      Sullivan, Conner <& Sullivan, for appellant.
    
      John T. Harney, for appellee.
   Sykes, J.,

delivered the opinion of the court.

On the 31st day of October, 1907, the appellant, the Hattiesburg Grocery Company, recovered a judgment in the circuit court of Forrest county against J. C. Tompkins, the appellee, in the sum of three hundred and thirty-four dollars and sixty-four cents. On the thirty-first day of October, 1914, the appellant filed this suit on the judgment in the circuit court of Forrest county, the declaration being filed on that day and process issued and served upon the defendant, J. C. Tompkins, on that day. The defendant, the appellee here, pleaded the statute of limitation of seven years. Plaintiff demurred to the plea, and the lower court overruled the demurrer, from which judgment appellant prosecutes this appeal.

Section 3103 of the Code of 1906 is as follows:

' “All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven years next after the rendition of such judgment or decree, and not after; and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree.”

. It is the contention of the appellant that the seven- ' year statute of limitations did not begin to run against this judgment until the day after its rendition. In other words, that in counting the seven years, the court- should •exclude the first day from the count. It is admitted by the appellee that the judgment was not barred, provided this first day should be excluded. The appellee, however, contends that a proper construction of the statute is to include the day the judgment was rendered.

Section 1606 of the Code, of 1906 states how time is computed in certain instances, but not in the one under consideration, and further states:

“And in all other cases when any .number of -days shall be prescribed, one day shall be excluded and the ■other included.”

While a number of states have statutory enactments providing for the inclusion or exclusion of certain days, we find that Mississippi has none governing this cause. The authorities are somewhat divided on the proposition, but the weight of authority is to the effect that the first day should be excluded from the count. The theory •of the law is that the entire time of seven years should •elapse before the claim is barred by the statute of lim- . itations. This law should be most favorably construed in favor of keeping the judgment alive for the full period. While the law, as a general rule, recognizes no fraction of a day, at the same time, as a' matter of common knowledge, we know that courts do not convene before eight or nine o’clock in the day. Therefore, in this case, the judgment certainly could not have been taken until eight or nine hours after October 31, 1907, had begun, and to hold that this day should be counted ■would be in effect to deprive the appellant here of at least a fractional part of a day to which he is entitled under the'law.' Since the law knows nor recognizes any fractional part of a day in a case of this kind, and since the statute of limitations should be most liberally construed to keep the judgment alive as long-as possible, it is our conclusion that justice demands that the court hold that the first day should be excluded. This may perhaps keep the judgment alive for a few hours longer than it would be if the court recognized fractions of a ■day. Here we are compelled to hold that the judgment was alive for the entire'day of October 31, 1911, thereby perhaps giving it validity for a few hours longer than a period of seven years from the time of its actual rendition; or to hold that the entire day of October 31, 1907, should be counted, in which event we would be actually shortening the period of seven years by at least eight or nine hours. Section 3Í03 of the Code above quoted says that:

“All actions . . . shall be brought within seven years n'ext after the rendition of such judgment,” etc.

We think the use of the word “next” in the above section precludes the idea that the day on which the judgment is rendered should be counted. As was well said in the case of Menges v. Frick, 73 Pa. 137, 13 Am. Rep. 731, in construing a statute of limitations: •

“The act provides that actions for account shall be commenced and sued ‘within six years next after the cause of such actions or suit, and not after. ’ There can be no doubt that the cause of action in this case arose on the day the timber was delivered. If that day is to be excluded from the reckoning, the six years had not expired when the suit was commenced. But why, even if the words of the act are to receive a strict and literal construction, should it not be excluded1? ‘Within six years next after the cause of action or suit,’ as applied to the facts of this case, must necessarily mean within six years next after the day on which the timber was delivered.”

A careful examination of the authorities shows that the great weight of authority is in line with this decision. Warren v. Slade, 23 Mich. 1, 9 Am. Rep. 70 ; Bemis v. Leonard, 118 Mass. 502, 19 Am. Rep. 470; Blackman v. Nearing, 43 Conn. 56, 21 Am. Rep. 634.

Reversed and remanded1  