McCarthy v. Collector of Taxes for Town of Sudbury

• Decision Date: 01 February 1938
• Citation: McCarthy v. Collector of Taxes for Town of Sudbury, 299 Mass. 340, 12 N.E.2d 722 (Mass. 1938)
• Court: Supreme Judicial Court of Massachusetts
• Parties: JOSEPH J. MCCARTHY v. ARTHUR R. HAWES & another.

299 Mass. 340

12 N.E.2d 722

JOSEPH J. MCCARTHY v. ARTHUR R. HAWES & another.

Supreme Judicial Court of Massachusetts, Middlesex.

February 1, 1938

January 6, 1938.

Present: RUGG, C.

J., DONAHUE, QUADOLAN, & COX, JJ.

Actionable Tort.Conspiracy.Practice, Civil, Appeal.

No appeal lies from the denial of an interlocutory motion in an action at law.

Allegations in a declaration in an action of tort against two defendants that the defendants conspired with each other with respect to a sale of the plaintiff's land for unpaid taxes, and general allegations characterizing the defendants' conduct as wilful, malicious, fraudulent and false did not state a cause of action where the other allegations set forth no tortious conduct on the part of either defendant.

TORT.Writ in the Superior Court dated November 13, 1936.Orders described in the opinion were entered by Beaudreau, J.

The case was submitted on briefs.J. J. McCarthy, pro se.

G. R. Farnum &amp J.

H. F. Calver, for the defendants.

COX, J.The plaintiff brought an action of tort in the Superior Court.Each defendant filed a demurrer and answer to the declaration.The plaintiff thereafter on November 3, 1937 filed a motion to strike from the files the demurrer and answer of the defendant Hawes, which were filed on January 20, 1937, on the ground that Rule 21 of the Superior Court(1932) had not been complied with.The motion also alleges "Said pleadings were not signed, and, demurrer not verified."The demurrers were sustained and the motion was denied.The plaintiff claimed a single appeal "from the decisions of the Court . . . sustaining the defendants' demurrers, and denying the appellant's MotionNo. 15 to strike out . . . ."

There is no right of appeal in an action at law from the denial of such a motion.G. L. (Ter. Ed.)c. 231, Section 96.Gallo v. Foleyante, 1.The proper way in which to bring such a matter before this court is by a bill of exceptions.G. L. (Ter. Ed.)c. 231, Section 96.But if the question were properly before usthe plaintiff would have no legal ground for complaint.The record shows that the pleadings were signed.A demurrer need not be verified in this Commonwealth.Rule 21 of the Superior Court(1932) provides, among other things, that copies of a demurrer and a motion filed after the declaration shall be given not later than the day of filing to adverse parties.If the rule is not complied with, the judge may entertain and allow or deny a motion to strike such papers from the files.All we have before us is that the trial judge denied the motion.There is nothing to show that this action was not proper.SeeO'Toole v. Concannon,276 Mass. 19 .

The appeal brings before us for review the orders sustaining the demurrers.G. L. (Ter. Ed.)c. 231, Section 96.Gallo v. Foley, ante, 1.

The grounds stated in the Hawes demurrer are "First: That the matters contained in the declaration are insufficient in law to enable the plaintiff to maintain his action.Second: That the plaintiff has not set forth in said declaration, or in any count thereof, sufficient grounds against the defendant Hawes in his official capacity, or in any other capacity, to enable him to maintain this action.Third: That the substantive facts necessary to constitute this, or any cause of action, are not stated with substantial and requisite certainty.Fourth: That neither in any count separately considered nor in the declaration as a whole are any substantive facts alleged which constitute a cause of action against this defendant.Fifth: That the plaintiff has alleged no sufficient facts showing any interest in and to the property described in the declaration."The grounds of the Holman demurrer are, in substance, that no single count of the declaration or the declaration as a whole sets out facts sufficient to constitute a legal cause of action against him; that the "writ and declaration" as worded and the facts set out do not constitute a legal cause of action against the defendant; and that the declaration in fact, law or form is not sufficient to require the defendant to answer.

The declaration is cast in seven counts, so called, each one of which is but a fragment and not a complete and definite statement of a cause of action.It is alleged that the seven counts are "all for one cause of action."Rice v. Coolidge,121 Mass. 393 .The plaintiff in his brief states that his action of tort is "in `nature trespass,' alleging a conspiracy to defraud plaintiff of his title to real estate . . . by defendant Holman . . . conspiring with defendant Hawes . . . ."

For convenience, we may deal with the so called counts of the declaration as if they were paragraphs.The first, stripped of its epithets and words of characterization, such as "wilfully,""maliciously,""fraudulently" and "falsely," merely alleges that the defendant Hawes as tax collector advertised for sale some lots of land of a deceased nonresident owner for unpaid taxes for the year 1933.The second paragraph alleges in substance that no notice of the time and place of the sale was given the plaintiff"who was the owner in fee, of said lots, as the sole heir of the above intestate by virtue of the statute of descent, of said Florida, which fact the defendant Hawes had knowledge of."There is nothing to show that any such notice was required.SeeG. L. (Ter. Ed.)c. 60, Section 40.The law of another State is a question of fact and cannot be considered on demurrer where there is no allegation as to it.Richards v. Richards,270 Mass. 113 .But real estate of a deceased intestate nonresident situated here descends according to the law of this Commonwealth.G. L (Ter. Ed.)c. 199, Section 1.The third paragraph alleges in substance that at the time and place of the sale on September 27, 1935, the defendant Hawes, "without ground," postponed the sale to September 28, 1935, at seven o'clock, P.M., without stating the place where the postponed sale was to be held, that on or before the hour of postponement the defendant Holman "instructed" Hawes to sell the lots to the town, and that Hawes did bid them in for the town.By G. L. (Ter. Ed.)...