Hanover Fire Insurance Company v. Shrader & Rogers, 89 Tex. 35

GAINES, Chief Justice. Counsel for the respective parties in this case, in response to the request of the court made at a former day of this term, have filed written arguments upon the questions to which their attention was then called, and have materially diminished the labors of the court. Upon the first question our conclusion is that Sunday, although the thirtieth day from that on which the motion for a rehearing was overruled by the Court of Civil Appeals, can not be excluded from the computation. Such is the general rule, although there are some conflicting decisions.

It was adopted by this court, after a careful consideration, in Burr v. Lewis, 6 Texas, 76; and we have found no case in this court which modifies that decision. Where the time allowed for doing

an act is very short it is usual to exclude a Sunday. The principle would seem to be that, when but a few days are allowed in which to do the act, it is not to be presumed the Legislature intended further to abbreviate it, in effect, by including a day ordinarily observed as a day of cessation from all ordinary business. For example, where two days are designated it is not reasonable to hold that it was the purpose to include a Sunday, when the practical effect of the ruling would be to reduce the time to one day only. But where weeks are included in the time allowed the reason does not apply.

Sunday at common law is dies non juridicus. (Swan v. Broome, 1 W. Bl., 496 and 526.) When the point was first raised in the case cited, Lord Mansfield was evidently in great doubt whether a court could not render a valid judgment upon a Sunday, but after full consideration the question was resolved in the negative. That a judgment rendered on that day is void, may now be regarded as settled law. It was so held by the Court of Appeals in Shearman v. State, 1 Texas Ct. App., 215. But it was also recognized that, while a judgment could not be pronounced, a verdict might be returned on Sunday. (See also Hoghtaling v.

Osborne, 15 John., 118.) A distinction is made- between judicial acts and those of a ministerial character, and it seems to be generally held that in the absence of a statute ministerial acts performed on Sunday are valid. The service of process on Sunday was forbidden by the statute of 29 Charles II., and we think that the English cases which hold the ministerial acts of officers of the court void because performed on Sunday are referable to that act. Expressions of opinions may be found in the books to the effect that the statute was merely declaratory of the common law.

Early decisions of the courts of Westminster hold to the contrary. (Mackalley’s case, 9 Coke, 66b; Bedoe v. Alpe, Sir W. Jones, 156; Swan v. Broome, supra; see also Sayles v. Smith, 12 Wend., 59.) But we have not found it necessary to determine that question. In 1846 our Legislature provided that “Ho civil suit shall be instituted, nor shall any process be had on Sundays, except in cases of attachment or sequestration.” Pasch. Dig., art. 1424. The substance of this provision is found in

article 1184 of the Revised Statutes, which reads as follows: “Ho civil suit shall be commenced, nor shall any process be issued or served on Sunday or any legal holiday, except in cases of injunction, attachment, or sequestration.” The prohibition against the filing of a petition (which is the commencement of a suit under our law), and against the issue and service of process, clearly implies that the filing of papers during the progress of the suit was to be allowed. (See Railway v. Harding, 63 Texas, 162; Crabtree v.

Whiteselle, 65 Texas, 111.) The statute does not refer to judicial acts, and they are left as at common law. The filing of an application for a writ of error in the Court of Civil Appeals is the continuation of a suit and not its commencement. In Bedoe v. Alpe, cited above, the information was filed on a Sunday and it was held that the filing was valid. We conclude from these considerations that an application for a writ of error may be lawfully filed on a Sunday; but do not hold that the clerk is bound to do an official act of that character on that day.

We think he may lawfully refuse to act when a paper is tendered to him to be placed upon the file; but that if he does act, his act is valid. Sunday being regarded by our people generally as a day of rest, and by many as a day of religious observance, in our opinion, save in exceptional cases, the officers of the court are not required to perform any official functions on such a day, and it is their privilege to refuse their performance shoidd they elect to do so.

We may imagine cases in which it may be proper to hold that a ministerial duty, performed on a Sunday, would be voidable if not void,—such, for example, as a sale by a sheriff of personal property under judicial process. But should it be so held in regard to such a sale, we think the ruling would rest upon the ground that it would be unjust to the defendant in execution that his property should be sold on a day which is usually devoted to a cessation of business and on which the conscientious scruples of many persons would forbid their attendance upon and bidding at the sale. (But see Sayles v.

Smith, supra.) It follows from what we have said, that we think the file mark put upon the paper on Monday was too late; and it remains therefore to con-' sider the effect of the clerk’s endorsement as to its receipt upon Sunday. The just inference from the endorsement is that the application was delivered to the clerk for the purpose of filing it, and that the clerk received it, but being doubtful as to his power to place it upon the file upon that day, noted the fact and date of its receipt, and marked it filed upon the next day.

Where a paper is deposited with the clerk of a court for the purpose of making it a part of the records in the case it is filed. The-evidence which is looked to by the court in determining whether the paper has been filed or not is the clerk’s endorsement of the fact upon the paper itself. The form of that endorsement is usually the word “filed,” with the date. We think, however, if the endorsement shows, the fact in other words it is sufficient.

We conclude that the application was lawfully filed on Sunday, and that the clerk’s endorsement is evidence of the fact of its filing, and therefore that we have jurisdiction of the application; but having examined it we also conclude that it shows no error, and it is therefore refused. Writ of error refused.