Prichard v. McGraw Oil & Gas Co.

Williams, Judge: Prichard brought an action in the circuit court of Taylor county against McGraw Oil & Gas Company, a corporation and John T. McGraw. The defendants failed to appear and on the 29th day of October, 1908, judgment was rendered in favor of plaintiff for $6,086.00. To,this judgment McGraw obtained a writ of error. The only error relied on is the court’s action in overruling his motion to quash the return on the summons. Mc-Graw appeared specially, and for the purpose of this motion only. The summons was issued on the 3rd of September, 1908, and was returnable at Rules to be held in the clerk’s office “on the first Monday in September, 1908,” and was personally served on John T. McGraw by the sheriff of Taylor county on the 8th of September, 1908. Service could have been made on the first Monday in September, the return day of the writ. Spragins v. W. Va. C. & P. Ry. Co., 35 W. Va. 139; Horn v. Perry, 11 W. Va. 694: It appears, however, that the first Monday in September, 1908, was the 7th day of the month; and counsel for plaintiff in error insist that a service after that day was a void service. But the [301] statute makes certain days in the^ear “legal holidays,” one of which is “the first Monday in September, commonly called Labor Day,” and further provides: “That when the return day of any summons or other court proceeding, or any notice, or the time fixed for holding any court, or doing any official act, shall fall on either of said holidays, the next ensuing secular day shall be taken as meant and intended.” chapter 15L, Code 1906. This statute is too plain to admit of judicial construction. It can have but one meaning which is to give validity to an official act done on the next ensuing secular day after a legal holiday, which should otherwise have been performed on the day of the legal holiday. There is no error in the ruling of the court, and the judgment will be affirmed. Affirmed.