Frassi v. McDonald

GAROUTTE, J. This is an action for personal injuries sustained by the plaintiff by reason of his falling through a sidewalk in front of a certain lot in the city of San Francisco, belonging to defendant, which sidewalk is alleged to have been in a dangerous condition by reason of defendant’s negligence. The sidewalk was a temporary affair in use during the progress of the erection of a building for defendant upon the lot of land fronting thereon. At the time of the accident the building was in - process of erection by three contractors, one contractor for the plumbing, one for the excavating, brick, concrete, and iron work, and the third for the carpenter work, plastering, et cetera. There appears to be no material difference in the testimony of the various witnesses as- to the occasion of the defect in the sidewalk. It was caused in the following manner: The excavating contractor had built a temporary sidewalk in front of the building and made excavations thereunder. This sidewalk was securely fastened and properly constructed in all ways. Subsequently, the plumbing contractor, at the request of the plumbing inspector of the city, and for the purpose of examining the fitness of the work under the sidewalk, took up two boards thereof. Within fifteen or twenty minutes thereafter this plaintiff, while passing by, fell through the opening thus made and received serious injury.

Plaintiff first insists that the bill of exceptions found in the record was not served in time. The time to serve this bill expired upon June 7th, unless an order made by the judge upon June 8th extended it an additional ten days. That is, the time expired upon June 7th, unless the fact that the 7th being Sunday gave appellant an additional day upon which to serve the bill. And that the law did give the appellant an additional day upon which to serve the bill there can be no question. If a bill served. upon the 8th had been in time (and that must be conceded under section 12 of the Code of Civil Procedure), then the court ihad the power upon that day to extend the time. The court [402]had previously made two orders of ten days each extending the time to serve the bill. Under the statute it had power to extend the time thirty days in all. June 8th was within the life of the second order, and necessarily the court had the power to make a third order extending the time ten days. Whatever time the law gave by reason of the fact that one of these orders expired upon a Sunday does not pro tanto exhaust the power of the court. If the thirty days’ time had been given in one order and had expired upon a Sunday, the appellant would have had an additional day by favor of the statute. The fact that the time fixed by an intermediate order fell upon a Sunday does not alter the case. The court made three orders of ten days each extending the time. By any process of mathematical calculation this can only be reckoned as an extension of thirty days’ time in all. The proposition here discussed has been directly passed upon in Muir v. Galloway, 61 Cal. 498, and we are satisfied with the construction of the statute as there declared, notwithstanding some doubt has been cast upon this decision in the later case of Reay v. Butler, 99 Cal. 477. Even if the soundness of this construction of the statute be doubtful, it would not be advisable to change the rule at this late day. There certainly are no pressing reasons which demand it.