Branagh v. Chicago Bonding & Surety Co.

SHAW, J.

Action against Chicago Bonding and Surety Company as surety upon a bond alleged to have been given “in accordance with the requirements of an act of the legislature of the state of California,” by the Hudson-Johnson Construction Company, to which, as contractor, certain public highway work was awarded. Judgment went for plaintiff and against the Surety Company, which appeals therefrom on the judgment-roll.

To the complaint said defendant interposed a general demurrer, which was overruled. In addition to this alleged erroneous ruling appellant claims that the action upon the bond was not commenced within six months after the filing of the verified claim with the California Highway Commission, by which the contractor was employed. There is absolutely nothing in the record disclosing whether or not the bond was given pursuant to the provisions of Act 2895, General Laws of 1915, page 1467, wherein it is provided that “at any time within six months after the filing of such claim, the person, company, or corporation filing the same may commence an action against the sureties on the bond.” Assuming, however, that it was so given, the claim was filed on April 12, 1915; so that the six months expired on October 12, 1915, and the complaint was not filed until the following day. But October 12th was a holiday, and section 10 of the Civil Code, provides that “The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then

[612]

it is also excluded." In

Diggins

v.

Hartshorne,

108 Cal. 165, [41 Pac. 287], the court said: “The statute required the person to whom the contract was awarded to enter into the contract within ten days after the award. The award to Buclcman was made November 17th, but, as the 27th of November was Thanksgiving Day, he had the whole of the next day in which to enter into the contract. ” ■ So here, the last day of the six months within which plaintiff was entitled to commence his action being a holiday, he had all of the succeeding day within which to commence the same.