45. Insufficient postage. An attorney is not bound to take a letter from the post office charged with postage though he has reason to believe it contains law papers, and the effect of his omission is a default of his adversary. Anon., 19 N. Y. 85. An attorney is not bound to take papers from the post office, served on him, where they are directed to another postoffice and are forwarded to the postoffice where the attorney resides, charged with postage. Woods v. Hartshorn, 2 How. Prac. (N. Y.) 48. - Private letter box. Where on the last day for service of an answer, at eight o'clock in the evening, defendant deposited a copy of his answer and demand for bill of particulars in the office letter box of plaintiff's attorney, the papers being not enclosed in an envelope nor addressed, such service was not sufficient. Fitzgerald v. Dakin, 101 App. Div. 261, 91 N. Y. Supp. 1003. 49. Contempt order. Order imposing a fine upon adjudging a judgment debtor guilty of contempt may be served by mail. Landes v. Schreiberg, 136 Misc. 719, 242 N. Y. Supp. 710. 50. Oregon. 53. -Statutory provisions. The service may be personal, or by delivery to the party or attorney on whom the service is required to be made; or it may be as follows: (1) If upon an attorney, it may be made during his absence from his office, by leaving it with the clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office; or if it be not open so as to admit of such service, then by leaving it at the attorney's residence with some person of suitable age and discretion. (2) If upon a party, it may be made by leaving the paper at his residence between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion. S. C. Code (1932), § 444. 54. Utah. 55. Statutory provisions. Service by mail may be made when the person making the service, and the person on whom it is to be made, reside or have their offices in different places, between which there is a regular communication by mail. Comp. Laws Utah (1917), 7026. In case of service by mail, the notice or other paper must be deposited in the post office, addressed to the person on whom it is to be served at his office or place of residence, and the postage paid. The service is complete at the time of the deposit. Comp. Laws Utah (1917), 7027. 56. Washington. 57. -Statutory provisions. Notices shall be in writing; and notices and other papers may be served on the party or attorney in the manner prescribed in the next three sections where not otherwise provided by statute. 2 Remington's Rev. Stats. Wash. (Ann. 1932) § 244. The services may be personal or by delivery to the party or attorney on whom service is required to be made, or it may be as follows: 1. If upon an attorney, it may be made during his absence from his office by leaving the papers with his clerk therein, or with a person having charge thereof; or, when there is no person in the office by leaving it between the hours of six in the morning and nine in the evening in a conspicuous place in the office; or, if it is not open to admit of such service then by leaving it at the attorney's residence with some person of suitable age and discretion; 2. If upon a party, it may be made by leaving the papers at his residence between the hours of six in the morning and nine in the evening with some person of suitable age and discretion. 2 Remington's Rev. Stats. Wash. (Ann. 1932) § 245. Service by mail may be made when the person making the service and the person on whom it is to be made reside in different places between which there is a regular communication by mail. 2 Remington's Rev. Stats. Wash. (Ann. 1932) § 246. In case of service by mail, the papers shall be deposited in the post office, addressed to the person on whom it is served, at his place of residence, and the postage paid; and in such case the time of service shall be double that required in case of personal service. 2 Remington's Rev. Stats. Wash. (Ann. 1932) § 247. is regular communication by mail. De Roberts v. Stiles, 24 Wash. 611, 64 Pac. 795. 62. Wisconsin. Service upon an attorney may be made during his absence from his office by leaving such copy with his clerk therein or with a person having charge thereof; or, when there is no person in the office, by leaving it in a conspicuous place in the office; or, if it be not open then by leaving it at the attorney's residence with some person of suitable age or discretion. If admission to the office cannot be obtained and there is no person in the attorney's residence. upon whom service can be made, it may be made by mailing him a copy to the address designated by him upon the preceding papers in the action; or where he has not made such designation, at his place of residence or the place where he keeps an office, according to the best information which can conveniently be obtained concerning the same. Wis. Stats. (1935) 269.34(2). Service upon a party may be made by leaving the copy at his residence between the hours of six in the morning and nine in the evening, with some person of suitable age and discretion. Wis. Stats. (1935) 269.34(2). SUBDIVISIONS (D) AND (E) COMMENT 63. Time for filing. Although preliminary drafts of what is now subdivision (d) provided that when a time was prescribed for the service of a pleading or other paper it should be filed as well as served within that time, filing within a "reasonable" time after service is now expressly sanctioned. 64. Filing with judge. By subdivision (e) the judge may permit papers to be filed with him, though, ordinarily, filing directly with the clerk is what is contemplated. Rule 6. Time. RULE 6 (a) COMPUTATION. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Sundays and holidays shall be excluded in the computation. A half holiday shall be considered as other days and not as a holiday. (b) ENLARGEMENT. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (1) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion permit the act to be done after the expiration of the specified period where the failure to act was the result of excusable neglect; but it may not enlarge the period for taking any action under Rule 59, except as stated in subdivision (c) thereof, or the period for taking an appeal as provided by law. (c) UNAFFECTED BY EXPIRATION OF TERM. The period of time provided for the doing of any act or the taking of any proceeding is not affected or limited by the expiration of a term of court. The expiration of a term of court in no way affects the power of a court to do any act or take any proceeding in any civil action which has been pending before it. (d) FOR MOTIONS-AFFIDAVITS. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 5 days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59 (c), opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time. (e) ADDITIONAL TIME AFTER SERVICE BY MAIL. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period. |