Anderson v. Birce

By the Court, Green, P. J. Birce sued the plaintiffs in error before a Justice of the Peace, and recovered a judgment. [281] They obtained a writ of certiorari to remove the judgment and proceedings into the Circuit Court. The writ, copy of affidavit and bond were served upon the Justice on Sunday. A motion was made on behalf of Birce in the Circuit Court to dismiss the writ of certiorari for that cause, which was granted by the Court, and a judgment was therefore rendered in favor of Birce against the plaintiffs in error for costs. Section 5 of ch. 43 of the R. S., (p. 191,) is as follows: “ No person shall serve or execute any civil process from midnight preceding to midnight following the said first day of the week; but said service shall be void, and the person serving or executing such process shall be liable in damages to the party aggrieved, in like manner as if he had not had any such process.” This provision makes the service absolutely void, so as to afford no protection if the person or property is taken, and to render of no effect the service of a summons or any other civil process on the first day of the week. The payment of the Justice’s fees on a subsequent day does not help the case. That was necessary in order to make the service of a certiorari effectual unless waived by the Justice, but was not itself service, and did not constitute any part of the service of the writ. The judgment of the Court below was therefore right, and must be affirmed, with costs to the defendants in error.