76 Wis. 368 | Wis. | 1890
The following opinion was filed January 28, 1890:
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
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
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
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.