45 Ill. App. 326 | Ill. App. Ct. | 1892
The appeal in this case is prosecuted from an order of the Circuit Court, denying a motion of appellant to quash the execution and set aside the judgment rendered by confession in vacation against appellant in favor of appellee, on the 25th day of December, 1891, commonly called Christmas; it was for §620 and costs, and was entered by the clerk as is provided by statute in such cases, Messrs. Mcllduff & Torrance appearing for the appellee in the suit. Execution on the judgment was issued on the same day. On December 81st, the appellant, by counsel, filed his motion in the Circuit Court as above stated, assigning as a reason, which was filed in writing, that the judgment was entered and execution issued on December 25, 1891, a legal holiday under the statutes of this State, and because of other irregularities and uncertainties in and about said judgment and execution. The app.eal in the case was taken from the order of the court in refusing to set aside the execution and judgment.
One of the points made in this court for reversal of the order of the court is, that the affidavit of the appellee to the' signature to the note and power of attorney, showing that it was the genuine signature of appellant, was made before E. S. Mcllduff, notary public, and that Mcllduff was one of the attorneys who represented the appellee in taking the judgment. The name of the firm of attorneys who represented the appellee in getting the confession of judgment was Mcllduff & Torrance, but it does not anywhere appear that the Mcllduff who acted as notary, ivas the same who acted as attorney. It is not disclosed by the record what the Christian name of Mcllduff, who acted as attorney, ivas, so there can be no contention that the identity of the two men should be inferred from identity of .names. AE the presumptions should be in favor of the judgment. Thomas v. Mueller, 106 Ill. 36; Joliet Electric Light and Power Co. v. Ingalls, 23 Ill. App. 50. Besides, the bill of exceptions fails’ to show that the affidavit was ever called to the attention of the court below, and the motion negatives the idea that such a point ivas relied on in that court. We will therefore dismiss that point without further comment. The main point relied on in the court below was, that any judicial or ministerial action done by a court or clerk on Christmas, it being a legal holiday, was absolutely void. We think this point is not Avell taken. While the question has never been passed on by the. higher courts of this State, we think it so well settled by adjudications in other States and in the text books that such days are not like the Sabbath, dies non juridieus, that it is only necessary here to refer to some of those authorities; besides, the entering of this judgment by the clerk was not a judicial but a ministerial act. Campbell v. Goddard, 117 Ill. 256. The law seems to be clear that the holding of court, or the transaction of other judicial business, on a legal holiday, unless prohibited by the statute, or unless such holiday be on the Sabbath, is not illegal, and not even if the statute create or make those holidays. Ruge v. State, 62 Ind. 383; Dunlap v. State, 9 Tex. App. 179 (S. C., 35 Am. Rep. 136); Pinder v. State, 12 Tex. App. 496; Cabtree v. Whiteside, 65 Tex. 111; H. E. & W. Ry. Co. v. Harding, 63 Tex. 162; Pfester v. State, 84 Ala. 432; Babbitt v. State, 87 Ala. 61; McVerry v. Boyd, 57 Cal. 406; Paine v. Fisco (1886), 1 Penn. Co. Reports, 562; State v. Rickets, 74 N. C. 187; State v. Moore, 104 N. C. 743; Richardson v. Goddard, 23 Howard, 28; Black on Judgments, Vol. 1, Sec. 182. Lampe v. Manning, 38 Wis. 673, if in conflict, is based on a statute of that State, prohibiting the doing of any business in any of the courts in that State on legal holidays. Sec. 17, Chap. 98, Revised Statutes of Ill. under head of Negotiable Instruments (see R. S.), only regulates the presentation and payment of such instruments on legal holidays. But it nowhere attempts to regulate the holding of courts or other legal business on a legal holiday. We think the rule too well established to require further discussion.
There is no other error assigned. There being no error in the record the order of the court below is hereby aflirmed.
Order affirmed.
