Coolidge v. Taylor

• Decision Date: 05 February 1907
• Citation: 65 A. 582,79 Vt. 528
• Parties: COOLIDGE v. TAYLOR.
• Court: Vermont Supreme Court

65 A. 582

79 Vt. 528

COOLIDGE

v. TAYLOR.

Supreme Court of Vermont. Windsor.

Feb. 5, 1907.

Exceptions from Windsor County Court; Seneca Haselton, Judge.

Action by John C. Coolidge against Warren R. Taylor. From a judgment for defendant, plaintiff brings exceptions and a petition for a new trial. Judgment that there was no error in the trial; judgment reversed pro forma; petition sustained, with costs; findings set aside; new trial granted; cause remanded.

Assumpsit for the collection of taxes, begun by trustee process, under V. S. 506. Plea, the general issue. Judgment for the defendant. The plaintiff excepted. The court found as follows: "The question is as to the tax of 1898. In making up the grand list of Plymouth on the 1st of April, 1898, the listers treated defendant as a resident of said town. As he had not given an inventory, they put property into his list which they valued at $1,400, doubled the same, and to the sum obtained by doubling, added the further sum of $10,000, claiming to act by virtue of section 424, V. S. The question at the threshold of the case is: Has the plaintiff by a fair balance of evidence established the residence of Warren R. Taylor in Plymouth on the 1st of April, 1898: The testimony of the town officials, taking direct and cross-examination together, seems to be largely matter of supposition, based upon their claim and understanding that he had always lived in that town. There was a place there that had always apparently been called the 'Taylor homstead,' but it does not appear that the title to that was in Warren R. Taylor. They testify in much the same way that they had seen him there from time to time, with more or less frequency. Just how close to the 1st of April no one says with definiteness. One of the selectmen of 1807-98, Mr. Pinney, was asked how long Mr. Taylor had lived at the Taylor homestead, so called, and replied: 'He always lived there, practically. I don't know but he lived a few years ago at Plymouth Union. That is in the town of Plymouth.' In cross-examination he is asked: 'Did you not know that he was a taxpayer and resident of the town of Sherburne several years, and an office holder there?' And says that he did. Now, Taylor could not have been a taxpayer and resident of the town of Sherburne for several years and still be during those same years a resident of Plymouth. On the other hand is testimony tending to show that Taylor was not a resident of Plymouth the 1st of April, 1898. Miss Stella Taylor, daughter of defendant, a woman of about 30, who had lived in Plymouth at the Taylor homestead, so that she was a person who ought to know, testified that her father had not lived there for a period of years before April, 1898. Her testimony and that of her brother tends to show that Taylor was there occasionally at the Taylor homestead, so called, and he might have been seen there occasionally, but nobody testifies to having seen him there in control of things. He might well have been there visiting, having a son and daughter there, and living as he did in a neighborhood town. Whatever his motive for changing his residence from Plymouth to elsewhere, we think that before April, 1898, and probably for a considerable time before, he had ceased to reside in Plymouth. We are not called upon to decide whether he was a resident of Woodstock—apparently he was not. The testimony is not entirely clear about it, but apparently his residence was in Sherburne. It is enough for us to pass upon the question of whether his residence was in Plymouth. We find that he was not a resident of Plymouth on the 1st of April, 1808, and was not taxable in the town of Plymouth on any personal property. That being so, as we understand it, the listers were without Jurisdiction to proceed as they did. With this finding that the defendant was not a resident of the town of Plymouth April, 1898, and not taxable in said town, judgment must be entered for defendant." The plaintiff also brought a petition for a new trial, on the ground of surprise, which was then heard with the exceptions.

William W. Stickney, John G. Sargent, and Homer L. Skeels, for plaintiff. Davis & Davis, for defendant.

TYLER, J. The action is assumpsit, with trustee process, for the collection of taxes; trial by the court; judgment for the defendant. The plaintiff excepted to the rendering of the judgment upon the facts found by the court, also to the findings of facts as being against the evidence. The findings and a transcript of the stenographic record of the trial are made part of the exceptions.

1. The first exception cannot be sustained, for the court found and reported facts sufficient to support its judgment.

2. The plaintiff did not except upon the ground that there was no evidence to support the judgment, but upon the ground that it was "against the evidence," which was the equivalent of claiming that it was against the weight of the evidence. This was not sufficient, for there was evidence tending to support the defense, and the weight of the evidence was for the consideration of the court. The often-stated rule is, if the finding of facts can be supported upon any rational view of the evidence, it should stand. Weeks v. Barron, 38 Vt. 420; State v. Peach, 70 Vt. 283, 40 Atl. 732.

Judgment that there was no error in the trial; judgment reversed pro forma; petition sustained with costs; findings set aside; new trial granted; cause remanded.

Petition for New Trial.

It must be conceded that the direct issue for the county court to try was whether or not the defendant resided in Plymouth and was legally taxable in that town on April 1, 1898. The plaintiff's evidence tended to show that at that time and for many years prior thereto that town was his place of residence. The defendant's evidence tended to show that on March 3, 1898,...