Michel v. Boxholm Co-operative Creamery, 128 Iowa 706

Michel v. Boxholm Co-operative Creamery

128 Iowa 706 | Iowa | 1905

Ladd, J.

1. Legal holidays: 'Issues had been joined at a.previous term of court, and the cause was assigned for trial on February 22, 1904. The fact that this was a legal holiday was one of the grounds of a motion for continuance, . filed February 19th, and when the case was called for trial defendant objected to being required to appear and enter upon the trial, and declined to participate. The motion and objection were overruled.

Section 3541 of the Code, found in the chapter relating to the manner of commencing actions, after enacting that the mode of appearance in court may be (1) by filing a memorandum to that effect with the clerk, (2) or by entering an appearance in the appearance docket or the judge’s calendar or announcing it to the court, or (3) by appearing for some special purpose connected with ‘the case, provides that “no member of the General Assembly shall be held to appear or answer in any civil or special action in any court while such General Assembly is in session, nor shall any person be held to answer or appear in any court on the first day of January, the twenty-second day of February, the thirtieth day of May, the fourth day of July, the twenty-fifth day of December, or on any day of thanksgiving appointed by the President of the United States or by the Governor of this State.” •

An appearance as here contemplated is a submission to the jurisdiction of the court in response to the service of the original notice, and the exemption intended is from doing that which is declared to constitute such appearance on the days designated. The statute has no application to one who has previously appeared and answered nor to attendance on court thereafter. The phrase “ held to appear or answer ” should be construed with reference to the subject-matter of the section, and, as that concerns appearance in an action in response to the notice “ to appear,” must have been intended in the same technical sense. Our statute does not create of holidays dies non juridicus. Cham*708bers v. Oehler, 107 Iowa, 155. Nor have they any sanctity other than by statute conferred. As was well said in Glenn v. Eddy (N. J. Sup.), 17 Atl. Rep. 145, 14 Am. St. Rep. 684: “ When the statute declares them to be legal holidays, it does not permit a reference to the legal status of Sunday to discover its meaning, for it proceeds to interpret the phrase, so far as it is prohibitory, by express enactment declaring what shall not be done thereon. What it thus expresses is prohibited. What it fails to prohibit remains lawful to be done.” See, also to the same effect, Whipple v. Hill, 36 Neb. 720 (55 N. W. Rep. 227, 20 L. R. A. 313, 38 Am. St. Rep. 742); Dunlap v. State, 9 Tex. App. 179 (35 Am. Rep. 736); State v. Sorenson, 32 Minn. 118 (19 N. W. Rep. 738); Hamer v. Sears, 81 Ga. 288 (6 S. E. Rep. 810); Elrod v. Gray Lumber Co., 92 Tenn. 476 (22 S. W. Rep. 2). As the trial of causes on legal holidays, save when falling on Sunday, is not prohibited, there was no error in overruling the motion for continuance and the proceeding with the trial on Washington’s Birthday, however much the propriety of doing so may be questioned.

s. contintjsubmission of conceded testimony. II. The motion for continuance was based in part on the absence of a witness, and in response thereto plaintiff admitted that the witness, if present, would testify as stated, This statement, it is said, raised an issue which should have been submitted to the jury. Had / *y it been read in. evidence, in connection- with the admission, such would have been its effect. But it was not offered by defendant, and this was no part of the court’s duty. The only effect of the admission was to authorize the defendant to “ read as evidence of such witness the facts held by the court to be properly stated.” Section 3665, Code. If ;not so read, it was no more for the consideration of the jury than a déposition or other evidence not introduced.

Tlhe verdict was not excessive, and the judgment is affirmed.