Thompson v. Church

• Decision Date: 10 October 1882
• Citation: 13 N.W. 626,13 Neb. 287
• Parties: MARGARET A. THOMPSON, PLAINTIFF IN ERROR, v. GEORGE M. CHURCH, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

13 N.W. 626

13 Neb. 287

MARGARET A. THOMPSON, PLAINTIFF IN ERROR, v. GEORGE M. CHURCH, DEFENDANT IN ERROR

Supreme Court of Nebraska

October 10, 1882

ERROR to the district court for Jefferson county. Heard below before WEAVER, J.

AFFIRMED.

Slocumb & Hambel, for plaintiff in error.

Entry of judgment on Sunday was void. Sec. 1002, Code, must be construed with sec. 38, Comp. Stat., 202. Houghtaling v Osborn, 15 Johns. 119. Reid v. State, 53. Ala 402. Blood v. Bates, 31 Vt. 147. Allen v Godfrey, 44 N.Y. 433. Story v. Elliott, 8 Cow., 27. McCorkle v. The State, 14 Ind. 39. Arthur v. Mosby, 2 Bibb., 589. Baxter v. The People, 3 Gilm., 368. Chapman v. The State, 5 Blkf., 111. Van Vechten v. Paddock, 12 Johns. 178.

O. H. Scott and A. R. Scott, for defendant in error, cited: Perkins v. Jones, 28 Wis. 244. Wearne v. Smith, 33 Wis. 412. Sibley v. Howard, 3 Denio, 72.

OPINION

MAXWELL, J.

This case was tried to a jury in a justice's court, the trial commencing on the twentieth day of August, 1881. The cause was submitted to the jury at 10:30 P.M., August 20, and at 7:30 A.M. on the twenty-first of that month, the jury returned their verdict into court. The justice thereupon immediately rendered judgment thereon. This is assigned for error. The question to be determined is the authority of the justice to render judgment on Sunday.

Sec. 38 of an act to amend chapter 13 of the Revised Statutes of 1866, entitled "Courts" (Comp. Stat., 202), provides that, "no court can be opened, nor can any judicial business be transacted on Sunday, or on any legal holiday, except, 1. 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.

Sec. 1002 of the code provides that, "upon a verdict, the justice must immediately render judgment accordingly."

These provisions of the statute must be construed together, and effect given to both as far as possible. Construed in this way but little difficulty will be found. Whenever a verdict is received, it is the duty of the justice to render judgment thereon. He is required immediately to perform this duty. There is no restriction upon the power nor any exceptions stated as to the operation of the rule. The verdict must be delivered publicly to the justice. It must be in writing and signed by the foreman, and the justice should enquire of the jury if it is their verdict, and either party may require the jury to be polled. These are formalities that attend the receipt of all verdicts, those received on Sunday not being excepted. These inquiries are necessary in order to determine that what purports to be a verdict has received the assent of all the jurors, and is actually what it purports to be, yet if the statute is to be construed literally, the right to make such inquiries might be questioned. The authority of a justice of the peace is derived wholly from the statute. That is the chart and compass by which he is to be guided. In certain cases where there is nothing in the nature of the power to be exercised by the officer which justifies the inference that time was mentioned in the statute as a limitation, the time within which an act is to be...