71 N.Y.S. 263 | N.Y. App. Div. | 1901
This is an appeal from an order directing the plaintiff’s attorneys to accept an alleged answer. The summons and complaint were served on Sunday, February 10,1901. Four days later another summons and complaint were served, in which relief was asked upon substantially the same ground as that stated in the complaint first served. On the second of March following the defendant’s attorney served an answer to the complaint in each action, and on the fourth of March the plaintiff’s attorneys returned the answer to the complaint first served, on the ground that that service was null and void. Thereafter a motion was made by the défendant to compel the plaintiff’s attorneys to accept the answer. The motion was granted and the. plaintiff has appealed.
The order appealed from must be reversed. At common law Sunday is dies non jurídicas. Process in a civil action can neither be issued, served, or a return made on that day. ( Van Vechten v. Paddock, 12 Johns. 178.) A judgment cannot be entered on Sunday (Hoghtaling v. Osborn, 15 Johns. 119), and if entered it is void. (Hastings v. Farmer, 4 N. Y. 293 ; Allen v. Godfrey, 44 id. 433 ; Blood v. Bates, 31 Vt. 147.) Service of process on Sunday in a civil action, except in certain cases, is expressly prohibited by statute. Thus, section 268 of the Penal Code provides :■ “ All service of legal process of any kind whatever upon the first day'of the week is prohibited, except in cases of breach of the peace, or apprehended breach of the peace, or when sued out for the apprehension of a person charged with crime, or except where such service is especially authorized by statute. Service of any process upon said day, except as herein permitted, is absolutely void for any and-every purpose whatever.”
Here service of the summons and complaint was a nullity. It was absolutely void, and the plaintiff could not have obtained a judgment upon such service had the defendant neglected or refused to appear. Had a judgment been entered it would have been void upon its face. It would have been coram non judice. The proof of service would have disclosed the fact that the service was made on the tenth of February, and the court would have taken judicial notice that the tenth of February was Sunday. (Ecker v. First National Bank, 64 Md. 292.) There was, therefore, no occasion
In addition to this, it appeared that intermediate service of the first summons and complaint and the second one the defendant’s attorney was informed of the fact that the service having, been made on Sunday it was void and would be so treated, unless the defendant would consent to voluntarily appear, which the attorney refused to do, on the ground of want of authority, and when the answer was served it was immediately returned upon the ground that “ 10th day of February having been a Sunday, process served on that day was absolutely void and had no effect whatevér.”
It follows, therefore, that the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
