The plaintiff’s notice of trial noticed the case for December 8, 1901, which was a Sunday, “ or as soon thereafter as counsel can be heard.” Since the order was made advancing the cause, the action has been tried and judgment has been recovered by the plaintiff. The appellant appeals from the *856order advancing the canse and asserts that the notice of trial,, noticing the cause for Sunday, was a nullity. It is true that Sunday is dies non juridicus and that judicial proceedings taken on that day are void and that contempt proceedings cannot be predicated upon a failure to obey orders returnable on that day. Arctic Fire Ins. Co. v. Hicks, 7 Abb. Pr. 204; Gould v. Spencer,
5 Paige, 541. In an ordinary civil action, so strict a rule is in my opinion inapplicable to what is evidently a mere clerical error in a notice of trial. Such a defective notice of trial is a mere technical irregularity and unless it is returned, the defect is waived. Boyd v. Vanderkemp, 5 Barb. Ch. 273, 289; New York Cent. Ins. Co. v. Kelsey, 13 How. Pr. 535.
In Wright v. Jeffry, 5 Cow. 15, a capias ad respondendum was returnable on Sunday, but the defendant having put in bail was held to have waived the defect. In that case, the court said: “ The case is not within the statute, or the rule of public policy which forbids any ministerial act in the course of a cause to be performed on Sunday. It is probably a mere clerical mistake of the return day.”
Where a notice of trial notice the action for the third Tuesday instead of the third Monday of the month, which was the first appointed day of the circuit, the court held: “ The error was merely clerical, and must have been so understood and appreciated by any intelligent member of the legal profession.” New York Cent. Ins. Co. v. Kelsey, supra, and cases cited.
The fact that the action could not be brought to trial upon a Shmday must be presumed to have been known to all, especially to members of the legal profession. If the attorney for the defendant thought the notice insufficient, he should have immediately returned it.
He did not return the notice, nor has he at any time claimed! to have been prejudiced thereby. To reverse this order, judgment having already been rendered in the action, because of what was-evidently a mere clerical error, would in my judgment be an injustice which neither the spirit nor letter of the law requires us to commit. The order appealed from should be affirmed, with ten dollars costs and disbursements.
■ Order reversed, with ten dollars costs.