Ryan v. Rooney

• Decision Date: 20 May 1914
• Citation: 90 A. 891,88 Vt. 88
• Parties: RYAN v. ROONEY.
• Court: Vermont Supreme Court

90 A. 891

88 Vt. 88

RYAN

v. ROONEY.

Supreme Court of Vermont. Franklin.

May 20, 1914.

Action of replevin by P. H. Ryan against George T. Rooney. Judgment for plaintiff on a directed verdict, and defendant excepted. Affirmed.

Argued before POWERS, C. J., and MUNSON, WATSON, and HASELTON, JJ.

W. D. Stewart, of Fairfax, and M. H. Alexander, of St. Albans, for plaintiff. Fred L. Webster, of Swanton, and Elmer Johnson, of St. Albans, for defendant.

HASELTON, J. The plaintiff was a resident and taxpayer of the town of Fairfax. The defendant was tax collector of the town, and, by virtue of a rate bill and warrant, distrained personal property of the plaintiff to satisfy a tax. The plaintiff in this action replevied the property so taken. To the plaintiff's action of replevin the defendant pleaded the general issue, and gave notice of justification under the tax warrant. Trial by jury was had. Verdict was directed for the plaintiff, and Judgment was rendered thereon. The defendant excepted.

It was conceded that the tax was legally voted in town meeting, and that the town legally voted to collect its taxes by its treasurer. It was also conceded that the defendant, the tax collector, and the listers, town treasurer, clerk, and selectmen were duly selected and qualified officers of the town.

The general verdict was directed on a single ground. The plaintiff returned a tax inventory to the listers. The listers did not accept his inventory as he had made it, for the reason that they believed that it was not a true and honest list. They made up his list and gave him, within the time required, a notice duly dated, addressed, and signed, which read as follows:

"We hereby certify that the leases held by you have been put in the list according to section 493 of the Public Statutes."

This was the only notice which the listers gave the plaintiff of the rejection of his inventory and the making up of his list by them; and the county court held the notice insufficient, and directed a verdict for the plaintiff for that reason.

The notice was clearly insufficient. It simply informed the plaintiff that the leases referred to were treated as perpetual or redeemable leases; for that was the result of referring to section 493 of the Public Statutes. Section 561 of the Public Statutes, as amended by No. 45 of the Acts of 1910, provides, among other things not here applicable, that, if the listers believe that the inventory returned by a taxpayer does not contain a full, true, and correct statement of his taxable property, they shall ascertain, as best they can, the amount of his taxable property, and set the same in the grand list at its value in money, and that, if the amount so obtained is less than the amount of his taxable property, they shall further assess him a sum which will, in their judgment, equal the difference between the amount of such appraisal and the amount of his taxable property, and that, if no taxable property of such person is ascertainable by the listers, they shall assess him a sum which, in their judgment, is the true value of all his taxable property.

P. S. 563, provides that when the list of a person has so been made up he shall be notified "thereof" by the listers by a written notice. What the listers had, in fact, done was to reject the plaintiff's inventory and make up a list for him. But this writing gave him no notice thereof, but merely notified him that certain leases held by him had been treated as perpetual or redeemable leases under section 493 of the Public Statutes. The statement in the notice that the leases had been put into the list under section 49.5 of the Public Statutes was not a statement that his list had not been accepted and had throughout been made up for him by the listers. The notice was, rather, a notice that his inventory had been tampered with than that a new inventory had been made up for him. Willard v. Pike, 59 Vt. 202, 208, 9 Atl. 907. The statute requires the notice to be in writing, and it ought not to be difficult for plain men when they have rejected the inventory of a taxpayer and proceeded to make up one for him to say so. There was sound reason on the part of the Legislature in requiring the notice to be in writing as this case shows.

The listers did not even refer to the statute under which they had proceeded, as did the listers in Meserve v. Folsom, 62 Vt. 504, 20 Atl. 926, where the notice was quite explicit, and was held sufficient. That the written notice must comply with the essential requirements of the statute is established. Meserve v. Folsom, 62 Vt. 504, 20 Atl. 926; Thomas v. Leland, 70 Vt. 223, 39 Atl. 1094.

There was no evidence, or offered evidence, which fairly and reasonably tended to show that the plaintiff waived the requirement with regard to notice.

The verdict for the plaintiff was rightly directed on the ground of the insufficiency of the notice.

Some exceptions relating to evidence were taken by the defendant, but it is immaterial to consider them, in view of the holding as to the notice.

Besides holding the notice insufficient and directing a verdict for the plaintiff, the court, in view of the claims in the case, submitted to the jury this question: "Did the listers of the town of Fairfax in making up the grand list of the plaintiff, in 1912, appraise the real estate listed therein?" To this question the jury said: "No."

The only substantial change in P. S. 561, made by the amendment of 1910 consists in the doing away of the doubling process. To be sure, in the original section, in the earlier part thereof, the listers are directed to appraise property at its value in money, and in the amendment they are directed to...