The City of Parsons v. Lindsay

• Decision Date: 01 January 1889
• Citation: 41 Kan. 336,21 P. 227
• Parties: THE CITY OF PARSONS v. ZERELDA P. LINDSAY, as Administratrix of W. H. Lindsay, deceased
• Court: Kansas Supreme Court

21 P. 227

41 Kan. 336

THE CITY OF PARSONS v. ZERELDA P. LINDSAY, as Administratrix of W. H. Lindsay, deceased

Supreme Court of Kansas

January 1, 1889

Error from Labette District Court.

THE opinion states the case.

Judgment reversed.

Kimball & Osgood, for plaintiff in error.

H. G Webb, and E. C. Ward, for defendant in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

This action was brought by W. H. Lindsay against the city of Parsons, for injuries resulting from a fall alleged to have been caused by a defective street-crossing. The action was commenced on the 11th day of October, 1879; a trial was had at the February term, 1880, of the district court, and judgment for the plaintiff for $ 3,000 and costs; this judgment was reversed by this court at its July term for 1881, and the cause remanded for a new trial. (26 Kan. 426.) Another trial was had before the court with a jury, at a special term, commencing on the 10th day of November, 1883; a verdict was returned by the jury at 3 o'clock P.M. on Sunday, the 11th day of November, 1883, in favor of the plaintiff, and assessing his damages at $ 1,000; on the same day the court discharged the jury, and rendered judgment in favor of the plaintiff upon the verdict for the sum of $ 1,000, and costs taxed at $ 565.50; on the same day a motion for a new trial was filed by the defendant, but the hearing of the motion was continued until the February term for 1884; on the 29th of February this motion was heard and overruled; the defendant excepted, and brings the case here; while pending in this court W. H. Lindsay died, and the action has been revived in the name of Zerelda P. Lindsay, his administratrix.

The defendant alleges that the judgment is null and void, because it was pronounced on Sunday.

At the time the judgment was rendered, the law in force provided that the regular term of the court in the fall of 1883 should commence on the second Monday in November, which in 1883 came on the 12th day of the month. It is well settled that the verdict of a jury may be received on Sunday. (Stone v. Bird, 16 Kan. 488; Reid v. The State, 53 Ala. 402.) By some of the courts the reason assigned for the validity of such a verdict is that the rendition and receiving are a work of necessity; by others, that it is merely a ministerial act, and not within the prohibition relating to judicial acts on Sunday. (Coleman v. Henderson, 12 Am. Dec. 290.) The acceptance of a verdict, however, is not equivalent to a judgment, but the rendition of a judgment thereon is a judicial act.

By the common law, Sunday is dies non juridicus, and therefore all judicial proceedings which take place on that day...