State Bank v. Spence , 37 Misc. 854 ( 1902 )

Delehanty, J.

This is an appeal from an order granting plaintiff’s motion to place the cause upon the short cause calendar. On November 30, 1901, plaintiff served a notice that the cause would be moved for trial on December 8, 1901, which day was a Sunday; thereafter he applied, upon notice, to place the cause upon the short cause calendar, and the defendant then objected thereto for the reason that no valid notice of trial had been served. The motion was granted, and the appeal is from the order entered thereon.

I am of the opinion that the order was improperly granted. It is based upon a notice of trial returnable upon a day which, at common law, is dies non juridicus. In Kenworthy v. Peppiat, 4 Barn. & Aid. 288, it was held that a writ returnable on a dies non is altogether void, and cannot even be amended by the court. In Holliday v. Cooper, 3 Mo. 203, the court said that where a writ is made returnable to no term known to the law of the land, but to some other day not the commencement of a term, appearance and pleading will not cure the defect; and we are not without precedent in onr own State upon the subject. In Gould v. Spencer, 5 Paige, 541, it was held that any process returnable on Sunday was irregular; and where the complainant made his subpoena returnable on that day and afterward took out an attachment thereon against the defendant for not appearing, the court set the attachment aside as irregular. And in Arctic Fire Insurance Company v. Hicks, 7 Abb. Pr. 204, it was decided that contempt proceedings cannot be predicated upon a failure to obey orders returnable on that day. Process in a civil action can neither be issued, seryed, or a return made on Sunday. Van Vechten v. Paddock, 12 Johns. 178. A judgment cannot be entered on that day (Hoghtaling v. Osborn, 15 Johns. 119) ; and, if entered, it is void (Hastings v. Farmer, 4 N. Y. 293; Allen v. Godfrey, 44 id. 433) ; and the Appellate Division in this department has recently decided, in Scott Shoe Machinery Co. v. Dancel, 63 App. Div. 172, that a service of summons and complaint made on Sunday is absolutely void.

While I am aware that there are authorities to the effect that such a defective process may be amended to promote the purposes of justice (Boyd v. Vanderkemp, 1 Barb. Ch. 273) ; and that where a capias ad respondendum was returnable on Sunday, the putting in of special bail, though without knowledge of the defect, is a waiver of it (Wright v. Jeffrey, 5 Cow. 15), yet I believe the law to be that a writ returnable to a dies non is returnable to a time when it is impossible for a court to be held, and is, therefore, void and incapable of amendment. The notice of trial in question should have been for a day within the term of court. Having been made returnable on a day when the court is expressly prohibited by statute from sitting, the defendant in my opinion could have disregarded it without incurring any risk or forfeiting any rights; and in the absence of a valid notice of trial, the court was without power to advance the cause.

It follows, therefore, that the order appealed from must be reversed, with ten dollars costs and disbursements.

McCabthy, J., concurs.