A. G. Spalding & Bros. v. Bernhard

The following opinion was filed January 28, 1890: Oassoday, J. The only question involved in this appeal is whether the assignment was void by reason of the execution of the bond, the approval thereof by the commissioner, and the filing of the same, with a copy of the assignment, as stated, on May 30, 1888. The portion of the statute which here requires special consideration reads: “No court shall be opened or transact any business ... on any legal holiday, unless it be for the purpose of instructing or discharging a jury, or of receiving a verdict and rendering a judgment thereon.” Sec. 2576, E. S., as amended by subd. 19, sec. 2, ch. 194, Laws of 1879, and ch. 142, Laws of 1885. The 30th day of May, 1888, was a legal holiday. Sec. 2577, E. S. Of course there could be no valid assignment against the plaintiff as a creditor of the assignors, without the giving and filing of the requisite bond, duly approved by the court commissioner taking the same. Sec. 1694, E. S. It is conceded that this section of the statute was in every respect complied with, unless the commissioner was prohibited from approving the bond, or doing the other acts named in the foregoing statement, by the provision of the statute above quoted. The argument is, that “the circuit court,'or the judge thereof in vacation,” had “ supervision of the proceedings [371] in all voluntary assignments made under the provisions of ” ch. 80, R. S., and could “ make all necessary orders for the execution of the same;” and that the court commissioner had authority to “exercise within his county the powers of a circuit judge at chambers, in any civil action pending ” therein; and hence that his approval of the bond was a judicial act, prohibited b.y the statutory provision quoted. The “ supervision of the proceedings ” in such voluntary assignments, and the making of “ orders for the execution of the same,” manifestly presuppose a completed assignment, with the requisite bond filed as required by the statute. Assuming that the approval of the bond by the commissioner was a judicial act, still it would be an abuse of language to say that it was the transaction of any business by a court. The statute simply prohibits any court from being open or transacting any business on any legal holiday, except as stated supra. The action of the commissioner in question was not the transaction of any business by any court, much less an act of the court in open court. To extend the statute beyond its language, plainly expressed, and apply it to the action of a mere court commissioner, or even of a judge at chambers, would be an attempt at judicial legislation entirely unauthorized. There are numerous cases in the books holding, in effect, that no act will be held illegal merely by reason of being performed on such legal holiday, unless forbidden by statute. In New Jersey they have a statute prohibiting the holding of court or the exacting of compulsory labor on legal holidays. The language of their court, in a late case, is so apposite to the case at bar that we quote: “The history of the common law and of legislation with respect to Sunday clearly indicates that it owes its exceptional position to a general sense of its sacred character as a holy day. To no other day — although many account other days holy — has a like distinction been accorded. When we compare [372] the course of the common law and legislation respecting Sunday with the statute now before us, a different treatment is observable. Although some of the days named are accounted holy by many, while others are national anniversaries or days when public duties are enjoined on citizens, yet there has been enacted no prohibition against the pursuit of any business or pleasure. There is no express prohibition against the service of the process of the courts. . . . The statutory declaration that these days shall be legal holidays does not indicate an intent to assimilate their status to that of Sundays ‘ Holiday,’ in its present conventional meaning, is scarcely applicable to Sunday. Phillips v. Innes, 4 Clark & F. 234. It is applicable to all and has long been applied to some of the days named. When the statute declares them to be legal holidays, it does not permit a reference to the legal status of Sunday to discover its meaning; for it proceeds to interpret the phrase, so far as it is prohibitory, by an express enactment declaring what shall not be done thereon. What it thus expresses is prohibited; what it fails to prohibit remains lawful to be done. The plain intent of the statute, therefore, is to free all persons, upon the days named, from compulsory labor and from compulsory attendance upon courts as officers, suitors, or witnesses. Its true interpretation will limit the prohibition, with respect to the courts, to such actual sessions thereof as would require such attendance.” Glenn v. Eddy, 51 N. J. Law, 255. Accordingly it was held in that case that a summons might be legally issued, tested, and served on such legal holiday. To the same effect is Smith v. Ihling, 47 Mich. 614. In Oregon it has recently been held that although the service of process issued from a court upon a legal holiday was irregular and might be set aside, yet that the service of notice of a contested election on that day was valid. Whitney v. Blackburn, 17 Oreg. 564. In a case arising in [373] this state under our statute, Judge Deummoud held that, “ In the absence of prohibitory legislation by the state, the docketing of a transcript of judgment on a holiday is not void, but will confer a valid lien upon the real estate of the debtor in the county where it is filed.” In re Worthington, 16 N. B. R. 54. In that case the learned judge distinguishes Lampe v. Manning, 38 Wis. 673, in which the cause was tried and the judgment rendered on a legal holiday, and said: “ At common law, Sunday was deemed a non-juridical day, during which no courts could transact any business or render any decree. Of course, at common law, some of the days which, under our practice, are deemed non-juridicial, were unknown as such; and when they are so declared the inference would be that the prohibition extends no further than is named in the statute.” This is in harmony with the language quoted from the New Jersey court, and there is nothing in our decisions in conflict with it. On the contrary, it has been held that our statute “ does not prohibit a justice of the peace from issuing a summons on such a holiday” ( Weil v. Geier, 61 Wis. 414); nor “ render inadmissible in evidence a deposition taken in another state on a day made a legal holiday in this state.” Green v. Walker, 73 Wis. 548. We must hold that the approval of the bond in question by the court commissioner, assuming it to have been a judicial act, was, nevertheless, valid, and hence that the assignment was improperly held void for that reason. By the Gourt.— The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law. A motion for a rehearing was denied April 8, 1890.