
    Mike Kasmas v. Elmo Bini and Clara Kasmas v. Elmo Bini.
    (Nos. 7147 and 7148)
    Submitted March 1, 1932.
    Decided March 8, 1932.
    
      Thomas S. Hoffman, and W. F. Keefer, for plaintiff in error.
    
      R. L. Ramsay, W. 8. Wilkin, and Fred Stone, for defendants in error.
   Woods, Judge:

Elmo Bini complains of tbe action of tbe circuit court of Brooke county in dismissing bis appeals from adverse judgments entered by a justice of said county on tbe sixteenth day of April, 1931, in two separate actions — one by Mike Kasmas and tbe other by Clara Kasmas. Said judgments were for $280.00 and $125.00, respectively.

Tbe defendant attempted to give an appeal bond in each of said cases on tbe twenty-fifth of April. On tbe twenty-sixth, tbe justice informed tbe defendant that tbe bonds were insufficient, but that be would receive a surety company bond. Thereupon tbe defendant on Monday, April twenty-seventh, filed a surety bond in each case, both being acknowledged before tbe justice, who in bis jurat included the statement “approved sufficient.” A transcript from bis docket together with tbe $10.00 docket fee, in each ease was, on tbe twenty-eighth of April, transmitted to tbe clerk of tbe circuit court. On July seventeenth of tbe same year tbe circuit court, upon motion, dismissed each of said appeals, with tbe memorandum “Tbe justice’s transcript shows that be did not grant an appeal. It simply states “Bond approved and sent to clerk of circuit court with transcript. Tbe motion to dismiss may be sustained.”

While it might appear that tbe bond was given after tbe ten days provided for by statute, it would seem that tbe tenth day being a Sunday, would be excluded from tbe calculation, under tbe statute (Code 1931, 2-2-3), which provides: “Tbe time within which an act is to be done shall be computed by excluding the, first day and including tbe last; or if the last be Sunday, it shall also be excluded.” Tbe court will take judicial notice that tbe tenth day, to-wit, April twenty-sixth, fell upon a Sunday, and that tbe bond was given tbe following day. Thus it fell within tbe statute. 23 C. J. 164; Lake Side Inn Corp. v. Commonwealth, 134 Va. 696, 114 S. E. 769.

Should tbe justice have noted on bis docket tbe granting of tbe appeal? Fortunately this is not a matter of first impression in this state. In tbe case of Holmes v. Yoke, 48 W. Va. 267, 37 S. E. 545, this Court held that if a party to a judgment files a good and sufficient bond in tbe office of tbe justice wbo rendered the judgment, within ten days thereafter, with the person in charge of the office during the temporary, absence of the justice, he is entitled to his appeal as a matter of right, and no act of negligence on the part of the justice can deprive him of the same. True, in Walton v. Ross, 75 W. Va. 529, 84 S. E. 245, the Court held that the judgment of a justice is not vacated nor an appeal perfected by the mere production or tender of an appeal bond. That ease is distinguished in the opinion from the Holmes case. In the latter, there was no approval of the bond, and it did appear that an appeal was denied by the justice. So, we are of opinion that the Walton case does not control here. Code 1931, 50-15-12, has the following proviso: “* * * Provided, that no appeal from any justice of the peace of any county of this state shall be dismessed on the account of any failure of any such justice to comply with any requirements of any statute relating to appeals from justices of the peace, if the appellant or appellants, have executed bond when such bond is required, and done all things necessary on his or their part to perfect said appeal.”

Taking into consideration the quoted statute and our holding in Holmes v. Yoke, supra, we reverse the judgments of the circuit court dismissing said appeals, and reinstate the cases on the docket of said court, in order that a hearing may be had on the merits.

Judgments reversed; Gases reinstated.  