Havens v. Stiles

• Decision Date: 25 January 1902
• Parties: HAVENS v. STILES
• Court: Idaho Supreme Court

67 P. 919

8 Idaho 250

HAVENS v. STILES

Supreme Court of Idaho

January 25, 1902

SUNDAY-LEGAL HOLIDAY.-A complaint filed on Sunday and a summons issued thereon by the clerk of the court is a ministerial act, and not prohibited by section 3866 of the Revised Statutes.

(Syllabus by the court.)

APPEAL from the District Court, Canyon County.

Reversed and remanded, with costs to appellant.

Lot L Feltham, for Appellant.

The court erred in sustaining the defendant Dunbar's motions to quash and set aside the summons, and strike the complaint from the files, upon the grounds that said summons was issued, and said complaint was filed on Sunday. There is no statute prohibiting any ministerial act on Sunday in Idaho. (In re Worthington, 7 Biss. (U. S.) 457, F Cas. No. 18,051; 20 Ency. of Pl. & Pr. 1197; Kiger v Coats (1862), 18 Ind. 153, 81 Am. Dec. 351; Hadley v. Musselman (1885), 104 Ind. 459, 3 N.E. 122; Reid v. State (1875), 53 Ala. 402, 25 Am. Rep. 627; Hanover Fire Ins. Co. v. Shrader & Rogers, 89 Tex. 35, reported in 30 L. R. A. 499, 59 Am. St. Rep. 25, 32 S.W. 872, 33 S.W. 112; State v Cal. Min. Co. (1878), 13 Nev. 215; Kelley v. Van Austin, 17 Cal. 565.) Was the summons void because tested on Sunday; and, if so, did the defendant, William C. Dunbar, appear generally when he moved to quash and set aside the summons and strike the complaint from the file? (Whitney v. Blackburn, 17 Or. 564, 11 Am. St. Rep. 857, 21 P. 874.) The issuance of a summons does not come within the prohibitions of section 3866 of the Revised Statutes of Idaho. It is only judicial business that cannot be transacted on Sunday or other holiday. The issuance of a summons in this state is purely a ministerial act. (20 Ency. of Pl. & Pr. 1105; Evans v. Etheridge (1887), 96 N.C. 42, 1 S.E. 633; Glendenning v. McNutt, 1 Idaho 592; Clough v. Shepherd, 31 N.H. 495; Glenn v. Eddy, 51 N.J.L. 255, 14 N. J. Eq. 339; Dupuy v. Shear, 29 Cal. 240.)

John C. Rice, for Respondent, files no brief nor makes appearance in supreme court.

STOCKSLAGER, J. Quarles, C. J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, J.

There are two questions involved in this appeal: 1. If the clerk of the district court voluntarily receives and files a complaint in a civil action on Sunday, and said action was not commenced or instituted for the purpose of obtaining an order of arrest, writ of attachment, execution, injunction, or writ of prohibition, and not being a proceeding to recover possession of personal property, is it prohibited by section 3866 of the Revised Statutes? 2. Is the filing of such complaint and the issue of summons thereon a ministerial or judicial act?

It is provided by said section 3866 that: "No court can be opened, nor can any judicial business be transacted on Sunday . . . . except for the following purposes: 1. To give, upon their request, instructions to a jury when deliberating on their verdict; 2. To receive a verdict or discharge a jury 3. For the exercise of the powers of a magistrate in a criminal action or in a proceeding of a criminal nature; provided, that in civil causes orders of arrest may be made and executed, writs of attachments, executions, injunctions, and writs of prohibition may be issued and served. Proceedings to recover possession of personal property may be had, and suits for the purpose of obtaining any such writs and proceedings may be instituted on any day." It is obvious from the foregoing statutory provision that the clerk of the court could not be required to perform any service on Sunday, except wherein it is provided that certain writs shall issue on that day, or any legal holiday. But if he does voluntarily receive and file the complaint, and issue the summons, are they necessarily void? We will consider this question first. In Re Worthington, 7 Biss. 455, 30 F. Cas. 641, F. Cas. No. 18,051, the official syllabus says: "The act of the circuit clerk in filing the docket transcript of a judgment is a ministerial act, and not void, though done on a nonjudicial day; and the judgment creditors thereby acquired a lien upon the real estate of the judgment debtor, the same as if done on any other day." The opinion of the court is in harmony with the syllabus. Ministerial acts may properly be performed on legal holidays, in the absence of express statutory provisions, and statutes prohibiting judicial acts do not apply to such as are merely ministerial. (20 Ency. of Pl. & Pr. 1205.) In the same volume, at page 1197, it is said: "While at common law, as has been seen, no judicial act could be done on Sunday, the authorities are practically unanimous that mere ministerial acts could be performed on that day, and this would seem to be the rule at the present time in the absence of any prohibitory statute." In Hadley v. Musselman, 104 Ind. 459, 3 N.E. 122, it is said: "As there is neither a statute nor a rule of the common law prohibiting the sale of property for taxes on Christmas Day, we cannot hold that a sale made on that day is void, however much we may doubt the wisdom and propriety of making sales on that day." Kiger v. Coats, 18 Ind. 153, 81 Am. Dec. 351, holds that the giving of notice of an award on Sunday is valid, it not being an act of common labor, not a judicial act, nor one specially prohibited by any statute, and being a mere ministerial act connected with a judicial proceeding. In Insurance Co. v. Shrader, 89 Tex. Supp. 35, 59 Am. St. Rep. 25, 32 S.W. 872, 33 S.W. 112, 30 L. R. A. 498, an application for a writ of error was received by the clerk on Sunday. He, being doubtful as to his power to file it, merely noted the fact and date of its receipt, and upon the next day marked it "Filed." The court, in passing upon the question, says: "We conclude that the application was lawfully filed on Sunday, and that the clerk's indorsement is evidence of the fact of its filing, and therefore that we have jurisdiction of the application." Again, in Clough v. Shepherd, 31 N.H. 490: "It is contended that it is illegal at common law to make any writ, or to deliver it to an officer for service on Sunday. In Mackalley's Case, 9 Coke, 66, it was decided that no judicial act ought to be done on Sunday; but ministerial acts may be lawfully executed on that day; and this decision is recognized as the law in Waite v. Hundred of Stoke, Cro. Jac. 496 (Com. Dig. 'Temps,' B, 3), and in Swann v. Broome, 3 Burr 1595, Johnson v. Day, 17 Pick. 106, and Frost v. Hull, 4 N.H. 153. The award of judicial writ is a judicial act, and void if done on Sunday. (Com. Dig. 'Temps,' B, 3.) But the issuing of original process (which is the present case) is merely ministerial. (Com. Dig. 'Temps,' B, 3.) Thus, in Waite v. Hundred of Stoke, Cro. Jac. 496, it is said by Croke, J.: 'An original writ or patent bearing teste upon the Sunday is good enough, for the chancellor may seal writs or patents upon any day.' And see Johnson v. Day, 17 Pick. 106, and Bedoe v. Alpe, W. Jones 156, there cited." In People v. Bush, 40 Cal. 344, the syllabus says: "The performance of a ministerial act by a judicial officer does not constitute the act itself a judicial proceeding." In Evans v. Etheridge, 96 N.C. 42, 1 S.E. 633, it is said the clerk only acts ministerially in issuing the process for attachment. This court, in Glendenning v. McNutt, 1 Idaho 592, said: "The only remaining question is, Was the appointment of Glendenning made on a nonjudicial day? If such was the case, there would be no question but that it would be valid. The letters appear to have been issued December 25, 1871, and the court refused the introduction of any further evidence upon the subject of the appointment. Had the court allowed the introduction of the probate court record, it would have shown that the administrator was not appointed on Christmas, but on the day following. The act of appointing was a judicial act; the act of issuing letters merely ministerial. The state does not prohibit a ministerial act on a nonjudicial day, but only judicial acts." In Weil v. Geier, 61 Wis. 414, 21 N.W. 246, it is held that "the statute providing that no court shall be opened or transact any business on any legal holiday does not prohibit a justice of the peace from issuing a summons on such a holiday, that being a purely ministerial act." In Glenn v. Eddy, 51 N.J.L. 255, 14 Am. St. Rep. 684, 17 A. 145, we find the following language used by the court: "The history of the common law and of legislation with respect to Sunday clearly indicates that it owes its exceptional position to a general sense of its sacred character as a holy day. To no other day--although many account other days holy--has a like distinction been accorded. When we compare the course of the common law and legislation respecting Sunday with the statute now before us, a different treatment is observable. Although some of the days named are accounted holy by many, while others are national anniversaries, or days when public duties are enjoined on citizens, yet there has been enacted no prohibition against the pursuit of any business or pleasure. There is no express prohibition against the service of the process of the courts. The direct prohibitions of the statute are aimed at only two things, viz.: (1) Compulsion...