Levy v. Elliott

By tbe Court, Beatty, O. J.: This action was, on motion of tbe defendant, dismissed by tbe district court, on tbe ground that tbe proceedings were void by reason of tbe fact that tbe complaint was filed and summons issued on Sunday. Tbe plaintiff appeals from tbe judgment of dismissal, and tbe only questions in tbe case are: 1. Can an attachment suit be commenced in this state on Sunday ? 2. If so, did tbe plaintiff in this case make a proper affidavit to entitle bim to tbe privilege ? Tbe fiftieth section of tbe act concerning courts of justice, etc. (0. L. sec. 955), is as follows: “ Section 50. No court shall be open, nor shall any judicial business be transacted on Sunday, on New Year’s Day, on the Fourth of July, * * * except for tbe following purposes: * * * Fourth — For tbe issue of a writ of attachment, which writ may be issued on each and all of the days above enumerated, upon tbe plaintiff, or some person in bis behalf, setting forth in tbe affidavit required by law for obtaining said writ tbe additional aver-ments, as follows: That tbe affiant has good reason to believe, and does believe, that it will be too late for tbe purpose of acquiring a lien by said writ to wait till a subsequent day for tbe issuance of tbe same. And all proceedings instituted, and writs issued, and official acts done on any of tbe days above specified, under and by virtue of this section, shall have all tbe validity, force and effect of proceedings commenced on other days,” etc. [438] Respondent does not deny that under this fourth exception a writ of attachment may be lawfully issued on. a nonjudicial day, but he contends that the right to the writ does not necessarily include the right to commence an action, and he insists that the exceptions to the rule forbidding the transaction of judicial business on non-judicial days, and especially Sundays, must be narrowly and literally construed, and not extended by implication to embrace anything that it does not include in terms. It is giving full effect to the section, he says, to hold that it merely authorizes the issuance of the writ, leaving the action to be commenced afterwards, or if this is denied, to hold that it applies in those cases only in which an action has. been commenced on a secular day, and is pending when the issuance of the writ is demanded. We think, however, that a different rule of construction applies, and that adifferent result follows. The statute is remedial, and ought to be liberally and beneficially construed in accordance with its object and reason. It must also be construed in connection with the statutes in pari materia. An attachment is a merely ancillary remedy, and in all cases an action must be commenced or must be pending at the time the writ is issued. (Comp. Laws, sec. 1184, et seq.) Construing this act together with the exception above quoted, it can not be held that the latter authorizes the issuance of the writ first and the commencement of the action afterwards. Neither can it be held that the privilege of issuing the writ on a non-judicial day is allowed only in cases where an action has been previously commenced. The plain intention of the legislature was to prevent debtors from availing themselves of the immunity of non-judicial days in order to make the remedy by attachment unavailable to some or all of their creditors; and this sole object of the law would be defeated in a great majority of instances by the construction contended for. We think it clear that in all cases an action must be commenced or must be pending to authorize the issuance of [439] the writ of attachment, and equally clear that,’ under the statute, the writ may issue on a non-judicial day whenever the plaintiff, or some person in his behalf, will make the necessary affidavit. It follows necessarily that when he makes such affidavit in an action not yet commenced, his complaint not only may but must be filed, and summons issued, on Sunday the same as on other days. But it is claimed that the plaintiff in this case did not make the necessary affidavit. Instead of saying it would be too late for the purpose of acquiring a lien by said writ if he waited till a subsequent day, he said it would be too late to acquire a lien upon said writ. . This substitution of the word “ upon ” for “ by ” is evidently a clerical mistake, and does not detract from the sufficiency of the affidavit. Our conclusion is that the court below erred in dismissing the action, and accordingly the judgment is reversed and the cause remanded for further proceedings.