Weil v. Geier

• Decision Date: 06 November 1884
• Citation: 21 N.W. 246,61 Wis. 414
• Parties: WEIL v. GEIER.
• Court: Wisconsin Supreme Court

61 Wis. 414

21 N.W. 246

WEIL

v.GEIER.

Supreme Court of Wisconsin.

Filed November 6, 1884.

Appeal from circuit court, Washington county.

I. N. Frisby, for appellant.

P. & T. O'Meara, for respondent.

COLE, C. J.

In striking from the record the transcript of the justice's judgment, the circuit court doubtless proceeded on the theory that such judgment was void. It appeared from the docket entries of the justice, which were made a part of the motion papers, that the summons was issued on the seventh of November, 1882, and made returnable on the twentieth of that month. It further appeared from the affidavits, used in opposition to the motion, that the plaintiff in the action received the summons from the justice on the eighth of November, and delivered it to the constable on the 14th, who served it on that day. The seventh of November was the day of the general election. The question, therefore, is, was the summons which was dated or issued by the justice on the day of the general election void? The counsel for the defendant contend that it is, because, as they argue, the statute makes the day of holding the general election a legal holiday, (section 2577, Rev. St.,) and further provides that no court shall be opened or transact any business on the first day of the week, or on any legal holiday, unless it be for the purpose of instructing or discharging a jury, or of receiving a verdict. Section 2576, as amended by section 19, c. 194, Laws 1879. These provisions making the day of the general election a legal holiday, and expressly prohibiting the opening of court on that day except for certain purposes, or the transaction of any business, it is said, render a summons issued on that day void. But we do not think the prohibition of the statute was intended to extend to the date or issuing of a summons in an action, because that is rather a ministerial than a judicial act.

The counsel for the plaintiff clearly showed that these acts are distinguishable in their nature, and he quotes some very apposite remarks from the opinion of Chief Justice SAVAGE in Tompkins v. Sands, 8 Wend. 466, where this distinction is clearly made. That case involved the question whether a justice, in refusing bail on an appeal in an action tried before him, acted in a judicial or ministerial character. It was conceded that if the act was judicial, as distinguished from ministerial, the action would not lie. The chief justice says: “It may sometimes be difficult to determine whether an act is judicial or ministerial. A justice of the peace performs acts of both kinds, and which are clearly distinguishable. He issues process in the first instance, and in doing so he acts ministerially. His judgment is not at all exercised. When the parties appear before him, and the cause is heard, he renders judgment. He then acts judicially. After judgment he issues execution. He then acts ministerially;” and, as the same counsel well observed, it is plain a justice does not act as a court in issuing a summons, because he may issue it at any place in the county, but he is required by statute to keep his office for the transaction of business or the trial of causes in the town for...