Cooley v. Aiken

15 Vt. 322 | Vt. | 1843

The opinion of the court was delivered by

Williams, Ch. J.

The question, whether the county court had jurisdiction, is presented now for the first time, the same not having been raised in the county court. The only ground on which the court can, with propriety, dismiss a cause for want of jurisdiction, in a case where the damages are- laid within the jurisdiction of the county court, is when it appears that the party has fraudulently attempted to give jurisdiction, by laying his damages above one hundred dollars for the sole purpose of giving jurisdiction. It was on this ground that the case of Kittridge v. Rollins, 12 Vt. R. 541, was decided ; and though I was opposed to the decision in that case, on the ground that, in trespass de bonis asportatis the value of the goods are never the criterion of damages, yet it is to be considered that the law, as established in that case, is to govern in all cases, when the county court believe that the party has wrongfully attempted to give them jurisdiction. In a subsequent case of Spafford v. Richardson, where the plaintiff declared on a contract for one hundred bushels of corn, to be delivered at a day certain, and no evidence was given to show that the value of the corn was, or could' be, over eighty-three dollars, it was determined that the county court erred in dismissing the cause for want of jurisdiction. As this question was not raised at the county court, we cannot determine that the plaintiff attempted improperly to give jurisdiction to the county court.

It appears from the exceptions that, on the 29th of July, ] 836, the plaintiff appeared before the defendant and Mr. Higgins, two of the selectmen of the town of Benson, and offered to make his disclosure under the statute, in relation to his money on hand and debts due, &c., he having been previously assessed by the listers in a sum which he thought was too much. It was the duty of the selectmen to receive this disclosure; their duties, in this respect, being purely ministerial, according to the decision in the case of Kellogg v. Aiken, 11 Vt. R. 243. If nothing further had taken place, the plaintiff, when he was compelled- to pay taxes on the sums assessed against him, would have had an undoubted right of action against the selectmen. No action accrued to him from this refusal, until he was thus compelled to pay. Hence if the selectmen had, afterwards, offered to take his disclosure, or if he agreed again to appear before them for that purpose, no injury would have arisen from their first refusal, unless they afterwards neglected their duty in this particular.

It appears that, on the evening of the 11th of August, 1836, the plaintiff did agree with Mr. Crofoot, the other selectman, to meet him and Mr. Higgins on the following Tuesday evening for the purpose of attending to the business of his disclosure. This was equivalent to a waiver of any advantage he might have had, or any claim on the selectmen for their previous refusal to take his disclosure, unless the meeting failed on account of their neglect. The failure to attend this meeting was on the part of the plaintiff; and, indeed, it was in evidence that he purposely avoided it. It is true the two selectmen did not come together on the evening proposed, though one of them appeared there. As the plaintiff had left the state, it would have been wholly useless for the other selectmen to have met. We think, therefore, the county court took a correct view of the law, as applicable to the case, both in admitting the testimony and in their charge to the jury.

The judgment of the county court is affirmed.