Merchants' Nat. Bank of Omaha v. Jaffray

• Decision Date: 01 February 1893
• Citation: 54 N.W. 258,36 Neb. 218
• Parties: MERCHANTS' NAT. BANK OF OMAHA v. JAFFRAY ET AL.
• Court: Nebraska Supreme Court

36 Neb. 218

54 N.W. 258

MERCHANTS' NAT. BANK OF OMAHA

v.JAFFRAY ET AL.

Supreme Court of Nebraska.

Feb. 1, 1893.

Syllabus by the Court.

1. An order by a district or county judge, allowing an attachment in an action on a claim not due, is a judicial act, within the meaning of section 38, c. 19, Comp. St.

2. An order made by a judge on Sunday or a legal holiday, allowing an attachment in an action on a debt not due, is void.

Error to district court, Douglas county; Clarkson, Judge.

The Merchants' National Bank of Omaha petitioned for an order permitting it to intervene in the action of Edward S. Jaffray and another against Henry Eiseman and another and directing the sheriff to apply the proceeds of a stock of goods sold in that action to the satisfaction of a judgment it had obtained against the same defendants in an action wherein the same goods had been attached. The petition was denied, and the petitioner brings error. Affirmed.George E. Pritchett, for plaintiff in error.

Kennedy & Learned, for defendants in error.

POST, J.

This is a controversy between attaching creditors. The plaintiff in error, on the 25th day of December, 1890, filed its petition in the district court of Douglas county against Henry Eiseman and Simon Eiseman, claiming judgment for $3,500 on a debt not due. At the same time it filed an affidavit in substantial compliance with section 238 of the Code, whereupon an order was on the same day made by Hon. George W. Doane, one of the judges of the district court of said county, allowing an attachment against the property of the defendants therein, which was issued in due form, and by virtue of which the property in controversy was on the day above named seized by the sheriff. The order of attachment through which defendant in error claims was issued December 26, 1890.

There are several questions argued which it is not necessary to notice, as the judgment of the district court must be affirmed on the ground that the order of attachment through which the plaintiff claims is void. It is by section 38, c. 19, Comp. St., provided that “no court can be opened, nor can any judicial business be transacted, on Sunday or on any legal holiday, except to give instructions to a jury then deliberating on their verdict; (2) to receive a verdict or discharge a jury; (3) to exercise the powers of a single magistrate in a criminal proceeding.” And by section 8 of chapter 41 it is provided as follows: “That the following days, to wit. the first day of January, February twenty-second, and the twenty-second of April, which shall be known as ‘Arbor Day,’ the twenty-fifth day of December, the thirtieth day of May, and July fourth, and any day appointed or recommended by the governor of this state or the president of the United States as a day of fast or thanksgiving, and, when any one of these days shall occur...