(dissenting):
I wish to state my reasons for not agreeing with the prevailing opinion. Our statute 1 requires the hearing commissioner to make an order and to give a copy thereof to all parties. The next section provides for the taking of an appeal to the district court.
The only thing which the hearing commissioner is required to do is to give a copy of the order to all parties. When he gives a copy to a person the matter is then final and the person receiving the copy must appeal therefrom the same as is provided for in Rule 73(a), U.R.C.P.2
Rule 6(e), U.R.C.P. relied upon in the main opinion has no bearing on this case. There is no requirement for a party to act prior to the receipt of a copy of the order. Whether the order is given by hand or by mail is immaterial. It is the receipt of the copy which constitutes the finality of the proceedings; and it is from that date that the time for an appeal should be measured.
In the instant matter the appellant received the notice on April 26. Its appeal then had to be filed with the district court within one month thereafter. It was not required to appeal or do anything else from the date when the order was made or when it was mailed. Therefore the three days extra time under Rule 6(e), U.R.C.P. is not involved. The only question is what is meant by “within one month.”
Our Court clearly stated the correct law in the case of In re Lynch’s Estate3 as follows:
*1330One month is a calendar month not a lunar month of 28 days, nor is it necessarily 30 days. Such a month commences at the beginning of the day of the month on which it starts and ends at the expiration of the day before the same day of the next month. Thus a month which starts with the beginning of the first day of a calendar month would end at the end of the last day of such month, and not at the last end of the first day of the next month. If the month in question commenced on a day other than the first day of such month, such as at the beginning of the 23rd day of such month, it would end at the expiration of the 22nd day of the next month and not at the expiration of the 23rd day of the next month, which would be the beginning of another month. In the present case we exclude from our calculation the day of the act or event after which the designated period of time begins to run, which is November 22, the day on which the motion was overruled, and start counting from the beginning of the 23rd day of that month; from that time one month would end at the expiration of the 22nd day of December, or just before the 23rd commenced, which marked the beginning of another month.
This was a per curiam opinion and has never been overruled. It was followed in Anderson v. Anderson4 wherein an appeal was taken on March 24 from a judgment entered February 23. This Court held: “It is thus clear that this appeal was not taken in time, that the failure to do so is jurisdictional and noticeable by the court sua sponte. The appeal is dismissed with costs to the respondent.”
In the instant matter the appellant received the order on April 26. It filed the appeal on May 27 following. By excluding April 26, the day the order was received, the time for calculating the appeal time would commence on April 27th. On May 26th the month would have expired, and the 27th day of May would be the first day of the second month. That would not be within one month.
In my opinion the appeal was not timely filed and should have been dismissed.
I would affirm the ruling of the trial court and award costs to the respondent.
. U.C.A. 1953, Sec. 31-4-9.
. Rule 81(d), U.R.C.P.
. 123 Utah 57, 254 P.2d 454 (1953).
. 3 Utah 2d 277, 282 P.2d 845 (1955).