Town of Brattleboro v. Frank O. Carpenter & Trustee

• Decision Date: 06 January 1932
• Citation: 158 A. 73,104 Vt. 158
• Parties: TOWN OF BRATTLEBORO v. FRANK O. CARPENTER & TRUSTEE
• Court: Vermont Supreme Court

158 A. 73

104 Vt. 158

TOWN OF BRATTLEBORO v. FRANK O. CARPENTER & TRUSTEE

Supreme Court of Vermont

January 6, 1932

November 1931.

Motion for Directed Verdict---Waiver of Jury Trial---Taxation---Waiver---Tax Bill as Prima Facie Evidence---G. L. 918, Paragraphs II, III---Necessity That Defendant in Tax Suit Particularize Defense---Burden of Proof---Objection to Evidence Unavailing by Reason of Particular Ground Not Having Been Alleged in Answer---Failure To Brief Exception as Waiver---Harmless Error---Insufficiency of Answer in Tax Proceedings To Raise Particular Grounds of Defense---"Particular"---Defense under General Issue---Sufficiency of Answer To Apprise Plaintiff of Grounds of Defense---Insufficiency of Answer, Alleging Failure To Give Notices, To Raise Point That Notices Were Not Posted---Ground of Defense Not Raised Below---"Wilfully"---Acts of 1927, No. 14, 1---G L. 780 Inapplicable to Wilful Omission of Intangible Property from Tax Inventory---Alteration of Instruments---Attaching Memorandum---Trial---Scope and Extent of Crossexamination---Discretion of Trial Court---Harmless Error---Requisites To Make Unpaid Tax "Delinquent"---Notice---Insufficiency of Notice---Waiver of Notice by Demand and Refusal Equivalent to Absolute Refusal To Pay by Taxpayer---Vote of Town Imposing Interest Charge on Unpaid Taxes---Recovery of Tax Collector's Commission in Action To Collect Delinquent Taxes.

1. Motion for directed verdict is in nature of demurrer to evidence of adverse party and challenges his right to go to jury, but moving party does not thereby concede that case should be taken from jury and submitted to court on evidence unless there is no conflict in evidence nor dispute as to facts.

2. If on trial it affirmatively appears that neither party wishes to go to jury, then it is for court to direct such verdict as in its judgment evidence requires.

3. In ACTION OF CONTRACT by town to collect delinquent taxes where, notwithstanding there was conflict of evidence on some issues in case, both parties waived their right to go to jury, and agreed that court should pass upon credibility of witnesses and weight of evidence, and direct such verdict as in its judgment evidence required, held that directed verdict for plaintiff would be upheld if there was evidence to sustain it.

4. In such action, where defendant in trial insisted that town show compliance with all statutory requirements for valid tax, he could not on review of case in Supreme Court claim that plaintiff was in error in that it did not rest after putting in tax bills, leaving defendant to prove material facts set forth in answer, and assume burden of proving validity of taxes by way of rebuttal, and that plaintiff had thereby waived statutory requirement that answer state "particular grounds" of claimed invalidity of tax.

5. In such action, under G. L. 918, paragraph II, providing that tax bill regular on its face, which had been placed in hands of officer designated by law to collect same, should be prima facie evidence that taxes therein standing against name of defendant were lawfully assessed against him, and G. L. 918 paragraph III, providing that, if defendant disputes validity of part or all of tax for which suit is brought, he must by answer or notice in writing set forth "particular grounds" whereon he claims tax is invalid or unlawful tax bills as to which no grounds of objection were set forth in answer were admissible in evidence.

6. In such action, so far as answer sets forth particular grounds whereon defendant claims taxes or any of them are invalid, statute places burden of proof upon plaintiff on such issue, and to make its case plaintiff must make proof of validity of such taxes in its opening proof.

7. In such action, objection to admission of quadrennial appraisal for particular year on ground that it did not affirmatively appear that preliminary oath of qualification was taken by listers and recorded in town clerk's office as required by law, held not available where particular grounds of exception were not set forth in answer.

8. Questions raised which excepting party fails to brief are thereby waived.

9. Error, if any, in admission of evidence, held harmless, where defense against which evidence was received had been waived.

10. Allegation in answer that tax inventory was not made and returned for certain specified years as required and provided by statute, held too general and inadefinite to comply with statutory requirement that defendant, to dispute validity of tax, "shall, by appropriate answer or notice in writing, set forth the particular grounds whereon he claims such tax is invalid or unlawful."

11. "Particular," as used in G. L. 918 with respect to requirement that defendant in tax suit to make defense available must by answer or notice in writing set forth "particular grounds" whereon he claims tax is invalid or unlawful, held to have been used in its ordinary sense, and to mean: "A separate or distinct member of a class, or part of a whole; an individual fact, point, circumstance, detail or item, which may be considered separately."

12. In ACTION OF CONTRACT to collect delinquent taxes, tax bill being essential to recovery, want of it may be taken advantage of under general issue.

13. Where tax bill is regular on its face, act or omission which invalidates tax must be set forth in answer with sufficient certainty and definiteness to apprise plaintiff of precise ground of defense it will have to meet.

14. In such action, allegations in answer that listers failed to give notices required by statute with reference to taxing defendant's property for certain specified years, and failed to complete and file abstracts within time and in manner required by statute, held insufficient to permit defense that it did not affirmatively appear that notices were posted.

15. In such action, ground of defense not raised below will not be considered by Supreme Court on review.

16. "Wilfully," as used in Acts of 1927, No. 14, 1, amending Acts of 1925, No. 21, 13, authorizing listers to appraise and set in general grand list intangibles "wilfully" omitted from taxpayer's inventory, means "intentionally."

17. Where taxpayer wilfully omitted intangibles from his tax inventory, listers did not err in appraising his intangibles and setting them in grand list rather than to proceed under G. L. 780, provisions of that section and Acts of 1927, No. 14, 1, when construed together as parts of Title 10, clearly indicating that, where inventory of tangible property conformed to law, wilful omission of intangible property should not invalidate inventory nor subject taxpayer to assessment of tax under provisions of G. L. 780.

18. Where listers, in proceeding under Acts of 1927, No. 14, 1, to appraise and set in taxpayer's grand list intangibles wilfully omitted by taxpayer from his inventory, attached to his inventory exhibit containing statement of what they had done in that connection, acting in good faith, with no intention to alter inventory, and no change in inventory in fact being made, held that such action on their part did not constitute material alteration of inventory, and did not invalidate taxes for that year.

19. Where excepting party in briefing refers to exceptions merely by reference to many pages of transcript, exceptions will not be considered, since Supreme Court will not search record for objections and exceptions on which to reverse judgment.

20. Scope and extent of cross-examination rests largely in sound discretion of trial court, and its ruling thereon is not revisable in absence of abuse thereof.

21. In ACTION OF CONTRACT to collect delinquent taxes, where listers testified on direct examination that after they had accepted defendant's inventory for certain year, they had been told that defendant owned taxable intangibles and where they could obtain information about them, court's ruling sustaining refusal of witnesses to disclose on cross-examination names of persons who gave such information, held not to be abuse of court's discretion.

22. In such action, permitting lister to testify that defendant had never made any complaints to board of listers in regard to list as to real estate and tangible personal property for certain year, held not harmful error, although immaterial.

23. To make unpaid tax "delinquent," collector must give notice to taxpayer of time and place when and where he will be to receive tax.

24. No property can be taken nor sale had under tax bill and warrant until requisite notice to make tax delinquent has been given, unless excused by demand and refusal equivalent to absolute refusal to pay; and such notice is also necessary when action to collect taxes is brought under statute.

25. Notices by tax collector which purported to be and are unsigned collector's receipts, showing taxpayer's grand list, different rates which make up total tax rate, and taxpayer's total tax, containing words "Payment is hereby demanded," but which failed to state time and place when and where collector will be to receive tax, held not to comply with statutory requirements as to notice, lacking which suit for collection of such taxes could not be maintained, unless there was demand by collector and refusal equivalent to absolute refusal to pay by taxpayer.

26. Where collector of taxes demanded payment of tax for certain years, and taxpayer refused to pay "unless something was abated," held that such conditional refusal to pay, not being justified, was equivalent to absolute refusal to pay, and was waiver of any right to statutory notice of time and place of payment.

27. Where town, in voting as to interest charge on unpaid taxes after first day of October of tax year, did not adopt provisions of...