Town of Brattleboro v. Carpenter

• Citation: 158 A. 73
• Parties: TOWN OF BRATTLEBORO v. CARPENTER.
• Decision Date: 06 January 1932
• Court: United States State Supreme Court of Vermont

158 A. 73

TOWN OF BRATTLEBORO

v. CARPENTER.

Supreme Court of Vermont. Windham.

Jan. 6, 1932.

[Copyrighted material omitted.]

Exceptions from Windham County Court; John C. Sherburne, Judge.

Action by the Town of Brattleboro against Frank O. Carpenter. There was a judgment for plaintiff, and defendant brings exceptions.

Judgment affirmed, except for modification as to amount recovered.

Argued before POWERS, C. J., and SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

Frank E. Barber and Ernest W. Gibson, Jr., both of Brattleboro, for plaintiff.

Herbert G. Barber, of Brattleboro, and Hale K. Darling, of Chelsea, for defendant.

THOMPSON, J.

This is an action brought by the plaintiff against the defendant under the provisions of G. L. 917-920, whereby it seeks to recover taxes for the years 1927, 1928, and 1929, and interest thereon, and also eight per cent. commission claimed to be due under the provisions of G. L. 7458. The defendant pleaded a general denial, and also filed an answer under the provisions of G. L. 918, par. 3, setting forth the particular grounds whereon he claims that such taxes are invalid or unlawful. There was a trial by jury. At the close of all the evidence, the defendant moved for a directed verdict on the ground, among others, that "the evidence in the case, taken in the light most favorable to the plaintiff, does not tend to show, and does not establish a valid tax." The motion was overruled, and the defendant took and was allowed an exception.

The court, after it had disposed of the defendant's motion, said: "Is there anything that counsel or parties wish to go to the jury on, or do you prefer that it be disposed of by the court on the basis of what the plaintiff's evidence tends to show?" Defendant's counsel replied: "That is the defendant's position as stated." The court then said: "I am disposed on that theory to direct a verdict for the plaintiff. The understanding is that no exception will be taken to that action on the ground of the weight or credibility of the evidence, and in leaving it to the court, you are letting the court, in its direction to the jury, pass upon the weight and credibility of the evidence—taking that from the jury." Defendant's counsel replied: "Yes." The plaintiff then waived its right to go to the jury, and moved that the court, upon all the evidence in the case, documentary and other evidence, direct a verdict for the plaintiff for the full amount of the taxes with interest and the collector's fees. The court then said: "I don't mean that you haven't a right to take exception on the ground that the evidence is insufficient to warrant a verdict, but I don't want you to take exception on the weight or credibility of the evidence, simply take an exception on the insufficiency of the evidence." Defendant's counsel then said: "The defendant waives the question of right to go to the jury on the question of credibility or weight of the evidence. My motion for the directed verdict is upon the ground that specifically that the evidence taken as a whole, is inadequate to support the plaintiff's right to recover, and therefore a verdict should be directed for the defendant." The court then directed a verdict for the plaintiff for the full amount claimed. The defendant took and was allowed an exception to the directing of the verdict on the ground that it was not warranted upon the evidence, and also an exception to the judgment on the verdict.

We have stated what was said and done after the court had disposed of the defendant's motion for a directed verdict, because the defendant now says that the evidence was conflicting on some of the issues in the case, and he did not waive his right to go to the jury on those issues.

It is true, as claimed by the defendant, that the mere fact that a party moves the court to direct a verdict does not amount to a waiver of the right, if such he has, to have the case submitted to the jury. Such a motion is in the nature of a demurrer to the evidence of the adverse party, and challenges his right to go to the jury; but the moving party does not thereby concede that the case should be taken from the jury and submitted to the court on the evidence, unless there is no conflict in the evidence nor dispute as to the facts. Mason v. Sault, 93 Vt. 412, 414, 108 A. 267, 18 A. L. R. 1426; Seaver v. Lang, 92 Vt. 501, 510, 104 A. 877; Bass v. Rublee, 76 Vt. 395, 399, 57 A. 965. But, if in the trial, it affirmatively appears that neither party wishes to go to the jury, then it is for the court to direct such a verdict as in its judgment the evidence requires. Fitzsimons v. Richardson, 86 Vt. 229, 232, 84 A. 811; Seaver v. Lang, supra; Mascott v. Insurance Co., 69 Vt. 116, 37 A. 255; Taylor v. Coolidge, 64 Vt. 506, 510, 24 A. 650.

While there is a conflict in the evidence on some of the issues in the case, it appears clearly from the above statements of court and counsel that both parties waived their right to go to the jury, and agreed that the court should pass upon the credibility of the witnesses and the weight of the evidence, and direct such a verdict as in its judgment the evidence required. In such circumstances, the verdict will be upheld if there is evidence to sustain it; otherwise, there should be a judgment for the defendant. Buckley v. Jennings 95 Vt. 205, 208, 114 A. 40; Brightlook Hospital Asso. v. Garfield, 92 Vt. 353, 355, 104 A. 99; Lowe v. Vt. Sav. Bank, 90 Vt. 532, 98 A. 1023.

Section 917 of the General Laws provides that taxes imposed or assessed under the provisions of chapters 41, 42, 44, and 45, inclusive, and all fees accruing or accrued against the taxpayer on account of delinquency, may be recovered with costs in the name of the municipality or district to which such taxes are due.

Paragraph 2 of section 918 provides that, except as otherwise provided in this section, a tax bill regular on its face, which has been theretofore placed for collection in the hands of the officer designated by law to collect the same, shall be prima facie evidence that the taxes therein standing against the name of the defendant were lawfully assessed against him.

Paragraph 3 of section 918 provides that, if the defendant disputes the validity of some part or all of a tax for the recovery of which suit is brought, "he shall not avail himself of such defense unless he shall, by appropriate answer or notice in writing, set forth the particular grounds whereon he claims such tax is invalid or unlawful. When such grounds are so set forth, the burden of proof shall be upon the plaintiff as to the validity of such tax thus put in issue."

The plaintiff, in putting in its opening case, introduced evidence which it claims shows that the listers and other town officers complied with the statutory requirements which are prerequisite to a valid tax so far as the validity of the taxes in question is put in issue by the general denial and answer of the defendant.

The defendant did not question this procedure at the trial below, but insisted upon it. When the plaintiff offered the tax bills in evidence, the defendant objected to their being received until the plaintiff showed that it had complied with all the statutory requirements for a valid tax. The court sustained the defendant's objection, and compelled the plaintiff to put in evidence, not only to meet the particular grounds of objection set forth in the defendant's answer, but also to meet many objections made during the trial, the grounds of which are not set forth in the answer, before the tax bills were received.

The defendant now says that the plaintiff should have put in the tax bills and then rested, leaving it for the defendant to prove the material facts set forth in his answer; that when such facts were brought forward by the defendant's evidence, then the burden of proof rested on the plaintiff to show the validity of the taxes by way of rebuttal; that, since the court did not follow this procedure, the pleadings should be construed according to the common law, i. e., that the general denial puts in issue all facts tending to show that the plaintiff has no cause of action; that, in this view, the "particular grounds" referred to in paragraph 3 are waived by the plaintiff by its course in putting in its opening case.

The defendant cannot "right about face" so easily as this. He invited the court to adopt the procedure which the plaintiff was obliged to follow, and he cannot now claim any special advantage by reason thereof. He is still confined to the particular grounds of defense winch are set forth in his answer.

We think the course taken in the trial below was the proper one, to a certain extent. The defendant does not question that each of the tax bills for the taxes in question is regular on its face. The statute makes them prima facie evidence that the taxes therein standing against the name of the defendant were lawfully assessed against him; that all of the statutory requirements for a valid tax had been complied with. The court should have received the tax bills in evidence when they were first offered. The objections made to them were not set forth in the answer. The defendant did not set forth any grounds of objection in his answer to the tax bills, and he could not, by the very terms of the statute, avail himself of any defense without setting forth the "particular grounds" of it in his answer. City of Montpelier v. Central Vt. Ry. Co., 89 Vt. 36, 44, 93 A. 1047. So far as the answer sets forth the particular grounds whereon the defendant claims that the taxes or any of them are invalid, the statute places the burden of proof upon the plaintiff in so far as the validity of the tax is thus put in issue; and it had to make such proof in its opening case, for otherwise it would have failed to make a case.

One ground of defense raised by the defendant's answer is that the quadrennial appraisal for the year 1926 was not "made up" and filed with the town clerk...