Ewing v. Tax Assessors of Town of Jamestown, 10014
| Decision Date | 30 October 1959 |
| Docket Number | No. 10014,10014 |
| Citation | 90 R.I. 86,155 A.2d 61 |
| Parties | Anne Ashton EWING v. TAX ASSESSORS OF TOWN OF JAMESTOWN. Ex. |
| Court | Rhode Island Supreme Court |
Sheffield & Harvey, Newport, for petitioner.
Letts & Quinn, Daniel J. Murray, Providence, for respondents.
This is a petition for relief from assessment of taxes which was filed in the superior court in accordance with the provisions of General Laws 1956, § 44-5-26. The case is here on the respondents' bill of exceptions to that court's denial of their motion to dismiss the petition for lack of jurisdiction. In this court the petitioner moved to dismiss the bill of exceptions on the ground that it was premature. After a hearing thereon we denied the motion, without prejudice however to the right of the petitioner to renew it at the hearing on the merits. She has availed herself of that right so that the first question to be considered here is whether the respondents have brought their bill of exceptions prematurely.
The taxes in question were assessed as of December 31, 1957 and were due and payable in full without penalty on or before December 31, 1958. However, the resolution passed at the town meeting imposing the tax further provided that the taxpayer could elect to pay the tax in quarterly installments by paying the first installment on or before August 30, 1958. The petitioner did not make such election but paid the tax assessed against her in full on September 20, 1958, and thereafter on January 8, 1959 filed the instant petition for relief in the superior court.
In support of their motion to dismiss, respondents contend that the petition was filed too late, since more than three months had elapsed after the first installment of taxes was due on August 30, 1958, and therefore the superior court was without jurisdiction. The petitioner contends that since she did not avail herself of the option to pay her taxes in quarterly installments but paid them in full before December 31, 1958, the three months period began to run from that date. The respondents reply that this was a misconstruction of the intent of G.L.1956, § 44-5-26.
The trial justice rejected respondents' construction of the statute and denied their motion. In other words he decided that in the circumstances petitioner had complied with the provisions thereof and therefore the court had jurisdiction. The petitioner contends that respondents' claim of a right of review of such decision is contrary to the rule laid down in Troy v. Providence Journal Co., 43 R.I. 22, 109 A. 705, namely, that a bill of exceptions lies only to a final decision on the merits which in due time by operation of law will lead to a final judgment in the cause. And she further points out that this rule has since been applied to a decision on a question of jurisdiction, McMahon v. Edelstein, 75 R.I. 402, 67 A.2d 32, and more recently reaffirmed in DePrete v. Farm Bureau Mutual Automobile Ins. Co., 83 R.I. 10, 111 A.2d 837.
However, respondents reply that, conceding this is the well-established general rule, it nevertheless admits of an exception where its application would result in hardship and injury and they cite in support of such view McAuslan v. McAuslan, 34 R.I. 462, 83 A. 837. In that case this court observed at page 468 of 34 R.I., at page 839 of 83 A.: 'We have frequently said in regard to the removal of cases at law to this court for review that the intent of the statute is that exceptions in such cases shall not be certified to this court until after all matters arising in the cause in the Superior Court have been determined.' But it was also recognized therein that the rule was subject to modification, the court saying further at page 470 of 34 R.I., at page 840 of 83 A.: 'The strict observance of this general rule would in some instances result in such possible hardship and injury that appellate courts in such case have taken cognizance of appeals from decrees, which were technically interlocutory in their character, before the merits of...
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Chang v. University of Rhode Island, 76-43-M
...323, 76 L.Ed. 704, 708 (1932); Bristol County Water Co. v. Public Util. Comm'n, R.I., 363 A.2d 444, 447 (1976); Ewing v. Tax Assessors, 90 R.I. 86, 90, 155 A.2d 61, 63 (1959). Clearly, therefore, the general language of § 28-5-5 does not create substantive rights in persons expressly and sp......
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