Cheney v. Inhabitants of Dover

• Decision Date: 17 May 1910
• Parties: CHENEY et al. v. Inhabitants of Dover[*]
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 501

91 N.E. 1005

CHENEY et al. v. Inhabitants of Dover^[*]

Supreme Judicial Court of Massachusetts, Norfolk.

May 17, 1910

COUNSEL

Gaston, Snow & Saltonstall, for appellants.

S. H Hudson and Philip Nichols, for respondents.

OPINION

KNOWLTON C.J.

These petitioners presented to the assessors of the town of Dover an application for an abatement of a tax alleged to have been assessed erroneously. The assessors refused to abate the tax and gave written notice to the petitioners of their decision, as required by Rev. Laws, c. 12, § 76. This notice was given on June 29, 1909. The petitioners, feeling aggrieved by the refusal of the assessors, and acting under the provision which is found in Rev. Laws, c. 12, § 78, and in St. 1909, c. 490, p. 1, § 77, attempted to take an appeal to the superior court, and on Thursday, August 5, 1909, filed in that court the petition or complaint which is now before us. In it they set forth, among other things, that they were aggrieved by the refusal of the assessors to grant the abatement applied for, and that they therefore appealed from the refusal to the court. By the terms of the sections above referred to, an appeal to the superior court may be taken 'by entering a complaint in said court on the first day after the expiration of thirty days from the giving of the notice' of their decision by the assessors, as required by the preceding section. The statutory return day in the superior court is the first Monday of every month. Rev. Laws, c. 167, § 24. The petitioners took out an order of notice on this petition, returnable on the first Monday of September, and caused it to be served upon the inhabitants of the town.

The respondents contended that the complaint or petition was entered in the superior court 3 days too late, and they appeared specially and filed a motion to dismiss for that reason. This motion having been allowed by the court, the case comes before us on an appeal by the petitioners. They cotend that the entry intended by the statute was an entry after service of notice on the respondents, and they rely in part upon the provision that a writ against a town must be served 30 days before the return day. They argue that the entry in this case was seasonable.

We are of opinion that the decision of the superior court was correct. The language in the next preceding section relative to appeals to the county commissioners is 'filing a complaint,' instead of 'entering a complaint,' which are the words used in this section. But 'entering' is the word ordinarily used for the commencement of a proceeding on the records of the superior court, while 'filing' is more commonly used in reference to papers presented for action before county commissioners. This distinction is recognized in St. 1891, c 87. We are of opinion that the filing of the complaint with the clerk of the county commissioners and the entering of a complaint in the superior court called for the same kind of action in either case, and that the complaint to be entered in the superior court on the return day is to be in a form similar to that of the complaint to be filed with the clerk of the county commissioners within 30 days after receiving the notice. There is no requirement of a service of notice of the complaint upon the inhabitants of the town in either case, it being assumed, apparently, that the knowledge of the assessors as officers of the town will sufficiently protect the interests of the inhabitants. By section 79 of this chapter of the Revised Laws (section 79 of St. 1909, c. 490, pt. 1) the time for the hearing may be...