Hunt v. Turner

• Decision Date: 17 December 1907
• Citation: 45 So. 509,54 Fla. 654
• Parties: HUNT v. TURNER.
• Court: Florida Supreme Court

45 So. 509

54 Fla. 654

HUNT v. TURNER.

Florida Supreme Court, Division B.

December 17, 1907

Appeal from Circuit Court, Walton County; Francis B. Carter, Judge.

Bill by George Hunt against Charles F. Turner. Decree for defendant and complainant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

Exceptions to an answer in chancery must conform to chancery usage, and unless they do so, are properly overruled. The purpose and scope of exceptions to an answer examined, and proper forms stated.

As a general rule, if a person is domiciled in a state, his personal property, in contemplation of law, has its situs in that state and is taxable there. Some exceptions to this rule are referred to in the opinion.

In this case the evidence tends to show that the appellant became a resident citizen of Walton county, Fla., some time before the 1st of January, 1903, and in the spring of 1903 voluntarily made a return of his taxable property to the tax assessor of Walton county, including therein $42,000 in money which he had in Chicago in bank or in the hands of brokers for the purpose of speculation. Held that, under the allegations of the bill and the facts shown in evidence, he was not entitled to be relieved from the payment of the taxes on said money and that under the laws of Florida his real estate situated in Walton county is responsible for said taxes.

Under section 36, c. 4322, p. 25, Laws 1895, it is not necessary for a tax collector to obtain a warrant from the county commissioners, unless there has been a total failure or omission on the part of the collector to obey the command of the warrant issued by the assessor.

COUNSEL

S. K. Gillis and Daniel Campbell & Son, for appellant.

W. W. Flournoy, for appellee.

OPINION

HOCKER J.

On the 20th day of April, 1905, George Hunt, of Walton county, filed his bill of complaint in the circuit court of Walton county against Charles F. Turner, of the same county, wherein he in substance alleged that he was over 21 years old, and had been a resident of Walton county since the month of March, A. D. 1903, and that prior to that date he had been a resident continuously of Chicago, Ill., for eight years; that the defendant was and had been tax collector of Walton county since January, 1903; that during March, 1903, he (the complainant) was given a tax notice upon which he was requested to list his property; that he was not familiar with the laws of Florida or the customs of its officers; that for four years prior thereto he was carrying on business through agents in Chicago and New York City; that to support the said business he had money deposited in bank in Chicago, and when he filled out the tax list by error and mistake he included the $20,000 he had invested in business in Chicago, Ill., and $22,000 that he had on deposit; that said sums were not taxable in Florida, and but for his error and mistake would not have been listed for taxation as aforesaid; that the tax collector assessed the said sums of money and the taxes thereon for the year 1903 at the amount of $646.80; that there was certain real estate and personal property in Walton County assessed to the complainant upon which all taxes and charges assessed thereon were paid, although he had some doubts about the legality of the assessment of the personal property; that complainant has not paid the said sum of $646.80, the amount of the state and county taxes levied upon the sums in Chicago and New York, for the reason that said assessment was not lawfully made, as the property was not assessable in Florida, and because complainant was not a resident of Florida on January 1, 1903; that the defendant threatens and intends to levy upon all complainant's real estate in Walton county, which amounts to about 3,140 acres, besides town lots, valued at least at $3,000, to satisfy the tax of $646.80 levied on property in Chicago and New York; that defendant intends to levy upon said lands and advertise the same for sale on the first Monday in June, 1905, and refuses to give complainant time to test the legality of the assessment by petition before making said levy and sale; that the defendant has no warrant or authority to make such levy and sale; that orator is informed and believes, and therefore avers, that the tax levied on personal property is not a lien on the real estate of orator, and, taxes thereon having been paid, defendant could not be authorized by any warrant to levy upon and sell the same to satisfy the alleged taxes upon the personal property; that the threatened sale will cast a cloud upon the complainant's title. The bill prays for an order restraining the defendant from advertising and selling his real estate in Walton county, for general relief, etc.

On the 20th of April, 1905, a temporary restraining order was granted.

On the 19th of July, 1905, the defendant tax collector filed an answer. Among other things it sets up that complainant bought lands near Argyle, Walton county, and that on or about October, 1901, he moved with his family and located on those lands, and soon thereafter built a residence thereon of not less than $1,000 value, and engaged in a general mercantile business, and has continuously resided at said place during the years 1901, 1902, and 1903.

The answer further states, on information and belief, that W. B. McLeod was the tax assessor in and for Walton county for the year 1903, and that he, in the discharge of his duties, in the early part of the year, left with the complainant a regular blank used by tax assessors of the state for making out tax returns by the individual taxpayers; that complainant, after keeping the return for several weeks, filled it out under oath and delivered the same to the tax assessor, a copy of which is made part of the answer; that the tax assessor did nothing to mislead the complainant in making his returns. This copy shows that the complainant returned as capital invested $20,000, and as 'money on deposit subject to draft, whether in or out of the state, $22,000,' making an aggregate of $42,000 subject to taxation within Florida.

The answer further alleges that the laws specially provide that taxes shall be a lien on real estate from the date of a valid assessment, and that it shall be responsible for taxes assessed against personal property of the taxpayer, and that warrants issued by the tax assessor are of full force and effect in the hands of the tax collector to whom it may be issued until all taxes remaining unpaid shall have been collected and final report and settlement made with the state and county authorities, and that by virtue of a warrant duly issued in accordance with the statutes the defendant, as tax assessor for 1903, is duly authorized to levy upon the land and tenements, goods and chattels, and effects of complainant for securing the payment of the unpaid tax of $646.80 on the property returned by complainant, which sum was legally assessed by the assessor and is unpaid. The answer has further allegations which amount to a demurrer to the bill.

The complainant endeavored to except to the answer in the following words, after giving the style of the case:

'The complainant, by his solicitor, files the following exceptions to the answer of the respondent, to wit:

'First. The said answer of the respondent is insufficient.

'Second. The said answer is not responsive to, and fails to set forth any defense to, the material allegations in the bill of complaint.

'Third. That said answer sets forth conclusions of law, and not of facts.

'Fourth. The said answer is based on information and belief of the respondent.'

Upon a hearing the exceptions were overruled by the circuit judge. Replication was filed to the answer, and a master was appointed to take the testimony. A commission was also issued to take the testimony of certain absent witnesses. On the 13th of February, 1907, the cause came on for final hearing on the pleadings and evidence, and a final decree dismissing the bill was entered for the defendant. An appeal was taken from this decree.

There are five assignments of error, which are reducible to two: First, the court erred in overruling the exceptions to the answer; and, second, the court erred in decreeing the bill to be without equity, denying a permanent injunction, and in making a decree contrary to the testimony and to law.

We are of opinion that the court committed no error in overruling the exceptions to the answer. This court has on several occasions delivered itself of its views of the proper use of exceptions to an answer in chancery and of the proper method of presenting the same. In Story on Equity Pleading (10th Ed.) § 861 et seq., the subject is discussed. Exceptions to an answer will lie for matter which is scandalous or impertinent, or for insufficiency. If an answer goes out of its way to state scandalous matter, or matter which is not material to the defendant's case, it will be expunged on proper application to the court. If in the opinion of the plaintiff the allegations or interrogations of the bill are not sufficiently answered, he may take exceptions to such answer, which exceptions are always in writing, stating the parts of the bill which the complainant alleges are not sufficiently answered, and praying that the defendant may in such respects put in a further and full answer to the bill. This court, in Peck v. Osteen, 37 Fla. 427, 20 So 549, in dealing with this question, referred to the case of Richardson v. Donehoo, 16 W.Va. 704, as containing a proper form of exceptions. It is as follows: 'Exceptions taken by the said complainant to the answer put in by the defendant, C. D., to the said complainant's bill of complaint. First exception: For that the said defendant, C. D.,...