The opinion
Mr. Justice Baker, dissenting:
I do not concur in the conclusion reached by a majority of the court. The intervening Sunday was not a judicial day, and was not a “day of the term.” That Sunday is dies non juridieus, has frequently been announced in this State. Burton et al. v. City of Chicago, 53 Ill. 87 ; Chicago v. Vulcan Iron Works, 93 id. 222 ; Langabier v. Fairbury, Pontiac and Northwestern Railroad Co. 64 id. 243; Scammon v. City of Chicago, 40 id. 146; Baxter v. The People, 3 Gilm. 368 . In Michie et al. v. Michie’s Admr. 17 Gratt. 109 , it was expressly held that a Sunday which intervened between the first and tenth days of the terms was dies non juridieus, and therefore not one of the days of the term of the court, and ought not to be counted as such. Read’s case, 22 Gratt. 924 , was to like effect. And in Bouligny v. White, 5 La. Ann. 31 , it was held that the three days allowed by statute for filing the appeal, after the return day, were judicial days, and that an appeal was in time even if filed on the third judicial day. See, also, Adams v. Dohrmann, 63 Cal. 417 ; Meng v. Winkelman, 43 Wis. 41 .
In view of the frequent previous decisions of this court that Sunday was not a judicial day, it seems to me manifest that the legislature, when they enacted that the record should be filed on or before the tenth day of the term, intended that Sunday should not be counted in computing the days of a term of a court. As I understand the law, Friday, October 17, 1890, was the “tenth day of the term” to which this appeal was returnable, and the statute provides that the transcript shall be filed “on or before” the tenth day of the term. If there had been an adjournment of the court from the first day of the term to the twentieth day of the month, it may be that Friday, the 17th, would nevertheless have been the tenth day of the term, but it would so have been because it was the tenth day in number, during the term, on which-valid judicial proceedings could have been had, if the court had so elected. But here, Sunday was, in contemplation of the law, dies non juridicus,—a day on which it was legally impossible for the court to have transacted judicial business, and not a day of the term, and therefore it should be excluded in making the computation. Appellant, having filed a transcript of the record within the time limited by the mandate of .the statute, has a statutory right to the benefit of his appeal.
I think that the motion to dismiss the appeal should be denied.