Haines v. McCormick

5 Ark. 663

• Court: Supreme Court of Arkansas
• Decided: July 15, 1844
• Status: Published

Opinion

By the court,

Sebastian J.

There is but a single point to be decided in this case, and that is, did the court below err in quashing the writ, because it was tested on the Sabbath. We think it is clear that it did not. Our statute forbids the execution of process upon the Sabbath, unless in the special cases, it enumerates. This raises a strong presumption that ordinary process could not be tested on that day, but even if it could, no writ, or process, according to the principles of the common law, which we have adopted, could be tested, or any judicial act done upon the Sabbath, unless in cases of urgent necessity; and the present is not one of that class. This principle is founded upon the moral sentiment of a Christian people, which all just governments respect and obey. It was not competent for the clerk to prove that' it was tested upon a day different from that named in the writ. A record or process of the cour.t cannot be altered or impeached by pa-rol. If the writ bore test upon a day, other than the true one, the plaintiff, by moving to amend the writ, should have been allowed the privilege. It was a mere clerical error within the discretionary power of the court. This he did not offer to do, but attempted to impeach it by parol testimony which could not be done. The decision in Hartley vs. Waring et al., 3 Ark. Rep. 119, proceeded upon the ground that the judgment against the plaintiffs upon the quashing the writs, was a bar to the action. The judgment in this case was not of that character and, although informal, was in ’effect only a dismissal of the case. Judgment reversed.