Ecker v. First National Bank

Alvey, C. J., delivered the opinion of the Court. The appeal in this case is from the overruling of a motion to quash an execution. The execution itself appears upon its face to be regular, and there is no disclosure thereby of any illegality in the judgment recited. But in the reasons assigned in support of the motion it is alleged that the judgment was rendered on Sunday, the 23d of December, 1883, and is therefore null and void ; and being null and void, no valid execution could issue thereon.

On the hearing of the motion to quash, the short entry of the judgment, as it appears on the docket of the Court, and all the entries relating thereto, with certain other papers on file in the cause, were olfered in evidence, and are embodied in a bill of exception taken by the appellant. And upon the evidence thus produced, and embodied in the exception, the question is, whether the judgment be really void by reason of the date it bears. It is certainly true that the Court is bound to take judicial notice of the fact that the 23d of December in 1883, ²⁹⁴ was Sunday; and it is equally true, that Sunday is not dies juridicus; and therefore, if we were compelled to -presume conclusively, from the mere fact of the date, and notwithstanding clear evidence to the contrary, that the judgment was in fact actually rendered on Sunday, the judgment would be nugatory, and would not support the execution. But the record abundantly shows that the judgment was not in point of fact rendered on a Sunday; that the cause had been tried before the Court without ' the intervention of a jury, and that some time after the trial an order was given to the clerk by the Judges who heard the case, to enter the judgment upon their findings of fact, as of a particular date, and that date happened to be Sunday: — a date inserted in their order by mere mistake and inadvertence.

According to the subsequent certificate of the Judges filed in the cause, the mistake committed by them, in giving the order for the entry of the judgment, consisted in directing the judgment to be entered as of the 23d of December, instead of the 23d of November, 1883. This certificate was filed in the cause for. the correction of the mistake that had been committed in matter of date merely ; but as the certificate was filed after the expiration of the term at which the cause was tried, and as of which the judgment was entered, the question is raised as to the right and power of the Judges to 'amend the judgment, by the correction of the mistake thus committed in respect to the date thereof, after the expiration of the term. As a general principle it is doubtless true, as laid down by Sir Edward Coke, that “ during the terme wherein any judicial act is done, the' record remaineth in the brest of the Judges of the Court, and in their remembrance, and therefore the roll is alterable during that terme, as the Judges shall direct; but when the terme is past, then the record is in the roll, and admitteth no alteration, averment, or proof to the contrarié.” Co.