Taylor v. Ervin

• Citation: 25 S.E. 875,119 N.C. 274
• Court: United States State Supreme Court of North Carolina
• Decision Date: 17 November 1896
• Parties: TAYLOR et al. v. ERVIN.

25 S.E. 875

119 N.C. 274

TAYLOR et al.

v.ERVIN.

Supreme Court of North Carolina.

Nov. 17, 1896.

Courts—Duration of Term—Sunday—Reception of Verdict—Judgment—Validity.

1. Under Code, § 910, and statutes amendatory thereof, which provide for courts to begin on a Monday named, and to last for one week, the term embraces the following Sunday, unless the term is sooner adjourned.

2. Where Sunday is a day of the current term, the reception of a verdict on that day is legal.

3. A valid judgment may be entered up at once on a verdict received on Sunday.

Appeal from superior court, Onslow county; Starbuck, Judge.

Action by S. B. Taylor and others against E. K. Ervin, in ejectment. A verdict for plaintiffs was returned and received between the hours of 2 a. m. and 3 a. m. on Sunday, and it and the judgment rendered thereon were entered on the records as having been returned and rendered on Saturday. Defendant afterwards moved that the case be replaced on the docket for trial, on the ground that the verdict and judgment were void. From an order that the cause be replaced on the docket for trial, plaintiffs appeal. Reversed.

R. O. Burton, for appellants.

CLARK, J. The Code, § 910, and the act substituted for it (Acts 1885, c. 180), and the several amendatory statutes, provide for courts to begin on a certain Monday named, and to last for one "week" (or two or three weeks, as the case may be). Of course, in such cases the term, if for one week, beginning on Monday, embraces the following Sunday, unless the court is sooner adjourned. if for two weeks, it embraces two Sundays, unless adjourned earlier, as is usual. in the present case the term prescribed for Onslow superior court began on the ninth Monday after the first Monday in September (which was the first Monday in November), "to continue in session one week * * * unless the business shall be sooner disposed of." The term legally expired, therefore, at midnight, Sunday, unless, in point of fact, the court had adjourned earlier; and the reception of the verdict on Sunday was legal, as has been repeatedly held. State v. Ricketts, 74 N. C. 187; State v. McGimsey, 8 N. C. 377; State v. Howard, 82 N. C. 623; White v. Morris, 107 N. C. 92, 12 S. E. 80; State v. Penley, 107 N. C. 808, 12 S. E. 455; Shearman v. State, 1 Tex. App. 215; McKinney v. State, 8 Tex. App. 626, 645; Com. v. Marrow, 3 Brewst. 402; Reid v. State, 53 Ala. 402. As stated by Ashe, J., in State v. Howard, supra: "Sunday, according to the usage and practice of our courts, is not a juridical day. * * * But it has been held that in special cases, ex necessitate, the court might sit on Sunday. The holding court on the Sabbath is not forbidden by the common law, or any statute in this state, but it has been the long-settled and almost universal practice, when a term continues so long that a Sunday intervenes, to adjourn over until Monday, and 'long practice makes the law of a court'; a law which has its origin and observance in a deference to the settled religious habits and sentiments of a large majority of our citizens; a law whose violation is not excused, except in case of necessity." To reduce the cases of necessity, the statute law (now Code, § 1229) has for long provided that, if a trial for felony is in progress, the judge may continue the term; and a more recent statute (Act 1893, c. 226) has provided that in certain contingencies the judge may continue the court for the conclusion of the trial of a civil action. The term here did not fall within these statutes, and in fact was not continued by the judge; but...