67 P. 919 | Idaho | 1902
— There are two questions involved in this appeal: 1. If the clerk of the district court voluntarily receives and files a complaint in a civil action on Sunday, and said action was not commenced or instituted for the purpose of obtaining an order of arrest, writ of attachment, execution, injunction, or writ of prohibition, and not being a proceeding to recover possession of personal property, is it prohibited by section 3866 of the Revised Statutes? 2. Is the filing of such complaint and the issue of summons thereon a ministerial or judicial act?
It is provided by said section 3866 that: “No court can be opened, nor can any judicial business be transacted on Sunday . . . . except for the following purposes: 1. To give, upon their request, instructions to a jury when deliberating on their verdict; 2. To receive a verdict or discharge a jury; 3. For the exercise of the powers of a magistrate in a criminal action or in a proceeding of a criminal nature; provided, that in civil causes orders of arrest may be made and executed, writs of attachments, executions, injunctions, and writs of prohibition may be issued and served. Proceedings to recover possession of personal property may be had, and suits for the purpose of
We were not favored with a brief of respondent in this case, but have carefully examined the authorities to which ciir attention has been called, and have quoted liberally from all those bearing directly on the issues involved in'the case. It seems to be almost universally held by the courts, with statutes similar to our own, that filing a complaint and issuing a summons thereon is a ministerial, and not a- judicial, act; hence not prohibited by statute. The Montana case is in harmony with this conclusion, and holds directly that such acts of the court officers are ministerial, but that they are prohibited by the statute
Case reversed, and cause remanded for further proceedings in harmony with this opinion, with costs to appellant.