Marks's Executors v. Russell
Supreme Court of Pennsylvania
Error to the Common Pleas of Allegheny county. This was an action of assumpsit brought by Caleb Russell against James I. Marks and John McClosky, executors, &c., of William Marks, deceased, in which, after plaintiff’s declaration and affidavit of cause of action were filed, a rule to plead on ten days’ notice or judgment was taken, served on the 27th of December 1860, and judgment in default entered January 7th 1861. On the 7th of January 1861, after the judgment was…
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Error to the Common Pleas of Allegheny county. This was an action of assumpsit brought by Caleb Russell against James I. Marks and John McClosky, executors, &c., of William Marks, deceased, in which, after plaintiff’s declaration and affidavit of cause of action were filed, a rule to plead on ten days’ notice or judgment was taken, served on the 27th of December 1860, and judgment in default entered January 7th 1861. On the 7th of January 1861, after the judgment was entered, the defendants pleaded non assumpsit, &c.; and on the 12th of January obtained a rule on tbe plaintiff to show cause…
1Opinion of the Court
The opinion of the court was delivered,
by Lowrie, C. J.
The judgment was premature. In counting the time to plead after notice, the day on which the notice is given is excluded, and if the final day falls on Sunday, it also is excluded, and a plea entered on Monday is in time. A judgment entered on that day is erroneous. The cases of Goswiler’s Estate, 3 P. R. 201, and Cromelien v. Brink, 5 Casey 522, show this.
Judgment reversed, and a procedendo awarded.
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