Hanover Fire Ins. Co. v. Shrader

• Decision Date: 09 December 1895
• Citation: 33 S.W. 112
• Parties: HANOVER FIRE INS. CO. v. SHRADER et al.
• Court: Texas Supreme Court

33 S.W. 112

HANOVER FIRE INS. CO. v. SHRADER et al.

Supreme Court of Texas.

December 9, 1895.

Application for writ of error. Denied.

For prior opinion, see 32 S. W. 872.

GAINES, C. J.

Counsel for the respective parties in this case, in response to the request of the court made at a former day of this term, have filed written arguments upon the questions to which their attention was then called, and have materially diminished the labors of the court.

Upon the first question, our conclusion is that Sunday, although the thirtieth day from that on which the motion for a rehearing was overruled by the court of civil appeals (32 S. W. 344), cannot be excluded from the computation. Such is the general rule, although there are some conflicting decisions. It was adopted by this court, after a careful consideration, in Burr v. Lewis, 6 Tex. 76, and we have found no case in this court which modifies that decision. Where the time allowed for doing an act is very short, it is usual to exclude a Sunday. The principle would seem to be that, when but a few days are allowed in which to do the act, it is not to be presumed that the legislature intended further to abbreviate it, in effect, by including a day ordinarily observed as a day of cessation from all ordinary business. For example, where two days are designated, it is not reasonable to hold that it was the purpose to include a Sunday, when the practical effect of the ruling would be to reduce the time to one day only. But, where weeks are included in the time allowed, the reason does not apply. Sunday at common law is dies non juridicus. Swan v. Broome, 1 W. Bl. 496, 526. When the point was first raised in the case cited, Lord Mansfield was evidently in great doubt whether a court could not render a valid judgment upon a Sunday, but, after full consideration, the question was resolved in the negative. That a judgment rendered on that day is void may now be regarded as settled law. It was so held by the court of appeals in Shearman v. State, 1 Tex. App. 215. But it was also recognized that, while a judgment could not be pronounced, a verdict might be returned on Sunday. See, also, Hoghtaling v. Osborn, 15 Johns. 118. A distinction is made between judicial acts and those of a ministerial character, and it seems to be generally held that, in the absence of a statute, ministerial acts performed on Sunday are valid. The service of process on Sunday was forbidden by the statute of 29 Car. II.; and we think that the English cases which hold the ministerial acts of officers of the court void because performed on Sunday are referable to that act. Expressions of opinions may be found in the books to the effect that the statute was merely declaratory of the common law. Early decisions of the courts at Westminster hold to the contrary. Mackalley's Case, 9 Coke, 66b; Bedoe v. Alpe, W. Jones, 156; Swan v. Broome, supra. See, also, Sayles v. Smith, 12 Wend. 59. But we have not found it necessary to determine that question. In 1846 our legislature provided that "no civil suit shall be instituted, nor shall any process be had on Sundays, except in cases of attachment or sequestration." Pasch. Dig. art. 1424. The substance of this provision is found in article 1184 of the Revised Statutes, which reads as follows "No civil suit shall be commenced, nor shall any process be issued or served on Sunday or any legal...