Poll v. City Of Plainfield.

• Citation: 53 A.2d 366
• Parties: POLL v. CITY OF PLAINFIELD.
• Decision Date: 19 May 1947
• Court: Tax Court of New Jersey

53 A.2d 366

POLL

v.CITY OF PLAINFIELD.

New Jersey Department of Taxation and Finance, Division of Tax Appeals.

May 19, 1947.

Petition by Anna Poll for a reduction of a real property assessment levied by the City of Plainfield for the year 1946. From a judgment of dismissal by the Union County Board of Taxation, the petitioner appeals.

Affirmed.

Syllabus by the Court

Where petition of appeal to the Division of Tax Appeals was deposited with the postal authorities for mailing within the period of time prescribed for filing by R.S. 54:2-39, N.J.S.A., but was not received at the office of the Division until after the period had expired, held, that the petition was not filed within time.

Harry W. Herzog, of Plainfield, for petitioner.

No appearance for respondent.

KREAMER, Commissioner.

This is an appeal from a judgment of dismissal by the Union County Board of Taxation of a petition for a reduction of a real property assessment levied by the City of Plainfield for the year 1946.

The record reveals that the petition of appeal to the Division of Tax Appeals was deposited with the postal authorities for mailing on December 16th and was received at the statutory office of the Division on December 18th.

Since a failure to file a petition of appeal within the period prescribed by statute is a fatal jurisdictional defect, it is within the province of this body to determine, sua sponte, whether or not the subject appeal has been filed within time. Singer Manufacturing Co. v. City of Elizabeth, see City of Hoboken v. Kelly, Tax Commissioner, 32 A.2d 710, 21 N.J.Misc. 193; City of New Brunswick v. Upsilon Chapter, etc., 11 A.2d 430, 18 N.J.Misc. 147.

R.S. 54:2-39, N.J.S.A., of our tax statute reads, in part, as follows:

‘Any appellant who is dissatisfied with the judgment of the county board of taxation upon his appeal may appeal from that judgment to the Division of Tax Appeals in the State Department of Taxation and Finance by filing a petition of appeal to the division, in manner and form to be by said division prescribed, within one month from the date on which the county board of taxation shall have published the entry of judgment or within one month from the date fixed for final decisions by the county boards, whichever date shall be earlier, and the division shall proceed summarily to hear and determine all such appeals and render its judgment thereon as soon as may be.’

November 15th is the date fixed for final decision by the county boards. See R.S. 54:3-21, N.J.S.A. and R.S. 54:3-26, N.J.S.A. Under R.S. 54:2-39, N.J.S.A., should the date of publication of judgment be ‘earlier’ than November 15th, appellants are compelled to file their petitions within one month of the earlier date, but clearly the last possible date for filing in any case cannot extend beyond December 15th.

As the record is barren of anything to indicate the date of publication of the entry of the county board judgment, we will proceed to determine whether the within appeal was filed on or before December 15th; for if it cannot be considered to have been filed on or before that date, then it must be dismissed regardless of when the entry of the county board judgment was published.

December 15, 1946, fell on a Sunday, and under the decision of our New Jersey Supreme Court in Ettrick v. State Board of Tax Appeals, 172 A. 365, 12 N.J.Misc. 432, petitioner herein had until Monday, December 16th, to file her petition. In the Ettrick case the petition was mailed to the clerk of the board and received by him on December 16th, December 15th having been a Sunday. In the case at bar, however, the petition was deposited in the mail on the last day for filing, i. e. December 16th, but was not received at the office of the Division until after the period for filing had expired. Under these circumstances, the prevailing view in jurisdictions throughout the country is that such filing is not within time.

In Pendrey v. Brennan, 31 Idaho 54, 169 P. 174, 175, the last day for entering an appearance in a law action fell on May 17th. On that date the defendant's attorney mailed a ‘demurrer’ to the clerk of the court, who did not receive it until after that date, at which time a default judgment had already been entered. On a motion to re-open the judgment the court stated:

‘This contention (defendant's) is to the effect that, when his demurrer to the complaint was deposited in the post office on the 17th of May, the filing was complete within the meaning of the law. If the contention were confined to the service of the demurrer by mail, the contention of the appellant might be conceded; but, as we understand it, a different rule applies with reference to the filing of a paper. To file the demurrer it must be deposited with, or placed in the custody of, the proper officer, whose duty it is to place his filing mark upon it, and it is incumbent upon the...