205 Mass. 501 | Mass. | 1910
These petitioners presented to the assessors of the town of Dover an application for an abatement of a tax alleged to have been assessed erroneously. The assessors refused to abate the tax, and gave written notice to the petitioners of their decision, as required by the R. L. c. 12; § 76. This notice was given on June 29, 1909. The petitioners, feeling aggrieved by the refusal of the assessors, and acting under the provision which is found in the R. L. c. 12, § 78, and in St. 1909, c. 490, Part I. § 77, attempted to take an appeal to the Superior Court, and on Thursday, August 5, 1909, filed in that court the petition or complaint which is now before us. In it they set forth, among other things, that they were aggrieved by the refusal of the assessors to grant the abatement applied for, and that they therefore appealed from the refusal to the court. By the terms of the sections above referred to, an appeal to the Superior Court may be taken “ by entering a complaint in said court on the first return day after the expiration of thirty days from the giving of the notice ” of their decision by the assessors, as required by a preceding section. The statutory return day in' the Superior Court is the first Monday of every month, so that the first return day after the expiration of thirty days from the giving of the notice was Monday, August 2. R. L. c. 167, § 24. The petitioners took out an order of notice on this petition, returnable on the first Monday of September, and caused it to be served upon the inhabitants of the town.
The respondents contended that the complaint or petition was entered in the Superior Court three days too late, and they appeared specially and filed a motion to dismiss for that reason. This motion having been allowed by a judge of the Superior Court
It has often been decided that, when a remedy has been created by statute and the time within which it must be pursued is one of the prescribed conditions under which it can be availed of, the court has no jurisdiction to entertain proceedings for relief begun at a later time. Custy v. Lowell, 117 Mass. 78. Peterson v. Waltham, 150 Mass. 564. Wheatland v. Boston, 202 Mass. 258.
The petitioners do not deny that no such service is necessary in an appeal; but they contend that the complaint before the county commissioners or the Superior Court is not an appeal, but a new proceeding. The statute treats it as an appeal, and calls it an appeal in both sections. The procedure provided is like that of an ordinary appeal. We think it is in fact an appeal, and that no service of process upon the town is contemplated. So far as we are aware, the practice has been in accordance with this view.
In their brief the respondents have cited more than thirty cases
Order of dismissal-affirmed.
Fessenden, J.