Green v. Walker

• Decision Date: 19 February 1889
• Citation: 73 Wis. 548,41 N.W. 534
• Parties: GREEN ET AL. v. WALKER.
• Court: Wisconsin Supreme Court

73 Wis. 548

41 N.W. 534

GREEN ET AL.

v.WALKER.

Supreme Court of Wisconsin.

Feb. 19, 1889.

Appeal from circuit court, Portage county.

J. O. Raymond, for appellants.

Lamoreux & Park, for respondent.

COLE, C. J.

This is an action of replevin, to recover the possession of a span of horses. The plaintiffs claim to own them as copartners. The defendant, as sheriff, justifies the taking and holding of the horses under an execution issued on a judgment against Simon Green, the husband of the plaintiff Alice. The real controversy, therefore, is, was the property seized on the execution the property of the plaintiffs? or was it the property of the judgment debtor? The plaintiff Alice, in order to prove that she had been in business on her own account, and had a separate estate, offered in evidence two depositions,--one of Albert Green, a brother-in-law; the other, of Mrs. Beers, her mother. These depositions were both taken,--the former in Michigan, the latter in Missouri,--on the 22d day of February, 1877. The depositions were objected to because taken on a legal holiday, and excluded on that ground. The depositions were clearly material to the issue, and their exclusion was doubtless prejudicial to the rights of Mrs. Alice Green. The question is, were they properly excluded because taken on a day which is made a legal holiday in this state? We are clear that this question must receive a negative answer. The statute relating to this subject is section 2576, Rev. St., as amended by chapter 142, Laws 1885. That section provides, in effect, that no court shall be opened or transact any business on the first day of the week, or any legal holiday, unless it be for the purpose of instructing or discharging a jury, or of receiving a verdict, and rendering a judgment thereon. The 22d day of February is made a legal holiday by section 2577. Now, if it be conceded--a point we do not decide--that the taking of a deposition in this state is a judicial act, which is prohibited, still it is plain our statute can have no extraterritorial effect. It could not prohibit the taking of a deposition in Michigan or Missouri, merely by making the day on which it was taken a legal holiday. The legislature might perhaps provide that no such deposition taken in another state should be used as evidence in the courts of this state. The legislature has not seen fit to do this, but has prohibited the courts, with certain exceptions, from transacting any business on a legal holiday. But this prohibition only relates to judicial acts, and does not apply to mere ministerial acts,--such as the issuing of a summons by a justice of the peace,--as this court has decided. Weil v. Geier, 61 Wis. 414, 21 N. W. Rep. 246. It would be a most liberal, not to say forced, construction of language to hold that the taking of a deposition by a notary public was the act of a court, or a judicial act in a legal sense. We have been referred to decisions holding promissory notes and other contracts made on Sunday void, but these cases afford little aid in solving the question before us. The case of Wilson v. Bayley, 42 N. J. Law, 132, does hold that a deposition taken upon a legal holiday upon notice to, but against the objection of, the opposing counsel, cannot be used. The question is not discussed at all, but the decision is placed upon the provisions of their statute in relation to legal holidays. That statute declares that no person shall be compelled to labor upon any legal holiday,...