54 Fla. 654 | Fla. | 1907
— On the 20th day of April, 1905, George Hunt of Walton county filed his bill of complaint in the circuit court of Walton county against Charles F. Turner, of the same county, wherein he in substance alleged that he was over twenty-one' years old, and had been a resident of Walton county since the month of March, A. D. 1903, and that prior to that date he had been a resident continuously of Chicago, Illinois, for eight years; that the defendant was and had been tax collector of Walton county since January, 1903; that during March, 1903, he the complainant was gjven a tax notice upon which he was requested to list his" property; that he was not familiar with the laws of Florida, or the customs of its officers; that for four years prior thereto he was carrying on business through agents in Chicago and New York city; that to support the said business he had money deposited in bank in Chicago and when he filled
On the 20th of April, 1905, a temporary restraining order was granted.
On the 19th of July, 1905, the defendant tax collector filed an answer, among other things, it sets up that complainant bought lands near Argyle, Walton county, and that on or about October, 1901, he moved with his family and located on those lands, and soon thereafter built a residence thereon of not less than $1,000.00 value and engaged in a general mercantile business and has continuously resided at said place during the years 1901, 1902 and 1903.
The answer further states on information and belief that W. B. McLeod was the tax assessor in and for Walton county for the year 1903 and that he, in the discharge of his duties, in the early part of the year, left with the complainant a regular blank used by tax assessors of the state for making out tax returns by the individual taxpayers; that complainant, after keeping the return for several weeks filled it out, under oath and delivered -the same to the tax assessor, a copy of which is made part of the answer, that the tax assessor did nothing to mislead the complainant in making his returns. This copy shows that the complainant returned as capital invested $20,000.00, and as. money on deposit subject to draft whether in or out of the state $22,000.00, making an aggregate of $42,000.00 subject to taxation within Florida.
The answer further alleges that the laws specially provide that taxes shall be a lien on real estate, from the date of a valid assessment, and that it shall be responsible for taxes assessed against personal property of the tax payer, and that warrants issued by the tax as
The complainant endeavored to- except to the answer in the following words, after giving the style of the case: “The complainant by his solicitor files- the following exceptions to the answer of the respondent, to-wit:
First, the said answer of the respondent is insufficient.
Second, the said answer is not responsive to- and fails to set forth any defense to the material allegations in the bill of complaint.
Third, that said answer sets forth conclusions of law and not of facts.
Fourth, the said answer is based on information and belief of the respondent.”
Upon a hearing the exceptions were overruled by the circuit judge. Replication was filed to the answer and a master was appointed to take the testimony. A commission was also issued to take the testimony of certain absent witnesses. . On the 13th of February, 1907, the cause came on for final hearing on the pleadings and evidence and a final decree dismissing the bill was entered for the defendant. An appeal was taken from this decree.
'We are of opinion that the court committed no error in overruling the exceptions to the answer. This court has on several occasions delivered itself of its views of the proper use of exceptions to an answer in chancery and of the proper method of presenting the same. In Story on Equity Pleading- (10th ed.) § 861, et seq. the subject is discussed. Exceptions to an answer will lie for matter which is scandalous, or impertinent, or for insufficiency. If an answer goes out of its way to state scandalous matter, or matter which is not -material to the defendant’s .case it will be expunged on proper application to the court. If in the opinion of the plaintiff the allegations or interrogations of the bill are not sufficiently answered, he may take exceptions to such answer, which exceptions are always in writing, stating the parts of the bill which the complainant alleges are not sufficiently answered, and praying that the defendant may in such respects put in a further and full ■answer to the bill. This court in Peck v. Osteen, 37 Fla. 427, 20 South. Rep. 549, in dealing with this question referred to the case of Richardson v. Donehoe, 16 West Va. 704, as containing a proper form- of exceptions. It is as follows: “Exceptions taken by the said complainant to the answer put in by the defendant C. D. to the said complainant’s bill of complaint. First exception — For that the said defendant C. D-. hath not to the best and uttermost of his knowledge, remembrance, information and belief answered and set forth whether (set forth the interrogatory in the bill which is
The exceptions in the instant case do not in any respect conform to the proper mode of talcing exceptions to an answer and are more in the nature of a demurrer thereto, which is not a recognized procedure in chancery practice. If an answer is in substance bad as a defense and raises no issue requiring proof of the allegations of the bill, the proper practice is .to- set the cause down for hearing on bill and answer. Story’s Eq. Pl. (10th ed.) § 456.
The next contention is that the preponderance of the testimony does not show that appellant was a resident of Walton county on January 1st, 1903, though it is admitted there is a conflict on this point, the allegations of the bill being that he was then a resident of Chicago-, 111. and had been continuously for more than eight years, and therefore that the moneys and credits referred to in the bill' could only be lawfully taxed in Walton county, Florida. In answer to the- tenth interrogatory propounded to the plaintiff he says: “On the 1st day of January, 1903, I was in Holmes county, Florida; I was there only temporarily located in Florida — in Holmes county, Florida. Two years prior to January 1st, 1903,
Mr. William King testified in substance that he knew the complainant, sold him the property at Argyle, Walton county, in January, 1902, the dwelling house which was subsequently burned, and rebuilt by Mr. Hunt; that Mr. Hunt told him he wanted the place for a home, a lifetime business. Said he had rather live at Argyle than DeFumak. There is no contradiction of this evidence. There is no proof that Mr. Hunt had any other home or domicile than this one in Walton county. There is nothing to sustain the allegation of his bill that he resided in Chicago on the 1st of January, 1903, and eight years continuously before that time. He was speculating in grain and cotton there through agents, and when he was occasionally there stopped at boarding houses. When he left Walton county in October, 1902, and took up his residence in a section house in Holmes county just across the line it seems to be clear from the testimony of Mr. McDonald, the section boss, and other
Mr. Hunt in explaining these items says the $3,167 was secured by mortgage on property in Walton and Holmes counties; that on January 1st, 1903, he had in Chicago with Lamson Brothers & Co. $14,000; with Milmene, Bodman & Co., $8,087, with Harris Gates Company $5,698.00, with the Bank of Montreal, $8,114.00. On the 31st of March, 1903, he had in Chicag'o with these parties about $42,000.00 and this was there for the purpose of being invested in cotton and grain.
A witness for complainant, one F. J. Deutche' a hotel keeper, testified that the complainant Hunt resided at his house in Chicago from May, 1895, until September 24, 1902, when he went to Florida; that he returned
This testimony was taken in May, 1906, and is inconsistent with that of the complainant himself and other witnesses. He concedes that he became a resident* of Walton county in March, 1903, though the evidence of his son shows he had been living in Walton county and in the section house in Holmes county since the fall of 1902. It is also shown in the testimony that he was a registered voter in Walton county sometime before 1904. It is also shown by the evidence of Mrs. Hunt that the complainant was in Florida with his family in January, February, March, April, and part of May, 1902, and that the family came to Argyle, Walton county the last of December, 1901. Mrs. Hunt says that Mr. Hunt owned no home in Chicago; that for about fifteen years prior to 1901, her children and herself had lived in Nebraska, which she considered her home. She says she has been in Florida since December, 1901. All this is absolutely inconsistent with the idea" that the complainant continuously resided in Chicago from 1895 to 1906 (excepting from September, 1902, to May, 1906). So far as we can discover from the evidence it does not clearly appear that the complainant and his family ever had any other home than the one in Walton county, Florida. Having come to this conclusion it is unnecessary for us to consider the contention that the moneys in question were assessed by the mistake of the complainant in making out the list of his taxable property. We do not think he was mistaken, and the rule is that a tax payer who lists his property for taxation is generally bound by the statements he makes as to its extent
In McConnell v. Kelley, 138 Mass. 372, it is said: “A man has a right to change his domicile for any reasons satisfactory to himself. In determining whether there has been such a change from one place to another, the test is to inquire whether he has in fact removed his home to the latter place with the intention of making it his residence permanently, or for an indefinite time.' If 'he has, he loses his old domicile, and acquires a new one with all its rights and incidents.”
It if contended by appellant that even though his residence was in Walton county on January 1st, 1903, .still the moneys making up the $42,000 were not lawfully taxable in that county because they were in Chicago and invested- in speculation in cotton and grain.
The assessment in the instant case was made under Chapter 4322 Acts of 1895, and the 1st, 3rd, 5th, 15th and 16th sections of which are as follows:
“Section 1. That all property, real and personal, in this state, not hereby expressly exempt therefrom, shall be subject to taxation in the manner provided by law.
Sec. 3. The terms personal property and personal estate, as used in this chapter, shall 'have the same mean-' ing, and shall, for the purpose of taxation, be construed to include all goods and chattels, moneys, and effects, all boats and vessels, whether at home or abroad, all debts due or to become due, from solvent debtors,
Sec. 5. The term money or moneys whenever used in this act, shall be held to mean gold and silver coin, United States treasury and bank notes, legal tender and all other forms of currency, and every deposit which any person owning the same or holding in trust and residing in this state is entitled to withdraw in money on demand. The term credits when used in this act shall be held to mean and include every claim and- demand for money or other valuable thing, and every annuity or sum of money receivable at stated periods, due or to become due. The terms parcel of real property and parcel of land wherever used in this act, shall each be held to mean the quantity of land in the possession of, owned by or recorded as the property of the same claimants, persons or company. Every word importing the singular number only, may extend to and embrace the plural number, and every word importing the plural number, may be applied and limited to the singular number, and every word importing the masculine gender only, may be extended to and applied to females ¡as well as males. Whenever the word oath is used in this act, -it may be held to mean affirmation, and the word swear in this act shall be held to include affirm.
Sec. 15. Between the first day of January and the first day of July in each year, the assessor in each county, with the aid of such assistant assessors as may be nominated by the assessor and appointed by the county commissioners, shall ascertain by diligent inquiry, the names of all taxable persons in his county, and also all their taxable personal property and all taxable rejal estate therein, on the first day of January of such year, and shall make out an assessment roll of all such taxable
Sec. 16. He shall set down in the assessment roll in separate columns according to the best information he can obtain, ist. The name of the person subject to poll tax, or owning personal property in the county, and the number of their district; 2nd. The number of-neat and stock cattle; 3d. The number of horses,. asses and mules. 4th. The number of sheep and goats. 5th. The number of swine and dogs. 6th. The value of all household and kitchen furniture, books, watches, silverware, moneys, in possession or at interest, or capital invested in trade, including notes, mortgages, except given for the purchase money and accounts. 7th. The full cash value of the personal property owned by, or to be taxed to such persons as provided by law. The tax assessor shall give to each person or his agent, at the time of assessing the property, one exact copy or duplicate roll of the property assessed; and where persons send in the list of their properties by mail, the assessor shall be required to give such duplicate roll, only upon demand by said person, and upon his enclosing a stamp to return said roll.”
It will be seen that an assessor must ascertain all taxable property in his county oh the first day of January
We think it is clear as a general rule that if a person is domiciled in a state, his personal property in contemplation of law has its situs in that state, and is taxable there. I. Cooley on Taxation, 86 and notes; Inhabitants of Lanesborough v. County Commissioners of Berkshire, 131 Mass. 424; Liverpool & L. & G. Ins. Co. v. Board of Assessors, 51 La. Ann. 1028, 25 South. Rep. 970, S. C. 72 Am. St. Rep. 483; Balk v. Harris, 124 N. C. 467, 32 S. E. Rep. 799, S. C. 70 Am. St. Rep. 606; Boyd v. Selma, 96 Ala. 144, 11 South. Rep. 393, 16 L. R. A. 729 and note.
There are some exceptions to this general rule. For instance where the investment of the funds of a non-resident is controlled by an agent of the owner, and loaned and reloaned by him to citizens of the state where he keeps the funds, the notes and securities taken and held by the agent in his possession and under his control these notes and securities have a business situs where they are kept which renders them there subject to taxation. Catlin v. Hull, 21 Vt. 152; In re Jefferson, 35 Minn, 215, 28 N. W. Rep. 256; 27 Am. & Eng. Ency. Law, (2nd ed.) 656.
There are other exceptions to the general rule, more or less involving this principle. But we have found no exception to- this general rule which would apply to the facts of the instant case. It does not appear from the evidence that the money in' question was invested in any sort of more or less permanent business in Chicago
We are of opinion that the statutes of Florida controlling this case clearly authorized the assessor of Walton county to assess the taxes on the $42,000.00 listed by the. appellant.
It is also contended that the warrant issued by the assessor to the collector in 1903, had expired in 1905, under the provisions of Section 36 of Chapter 4322 Laws of 1895, and that the collector had no authority to proceed under it, to collect the taxes in dispute. That section is as follows:
“Sec. 36. If for any cause su-ch warrant and assessment roll shall not be delivered to the tax collector on or before the first Monday in November of any year, or the tax collector shall fail or omit to obey the command thereof as therein required, it shall be the duty of the county commissioners to issue another warrant, in the sanie form as above provided, and the tax collectors are required to make all collections on or before the first Monday in April; and on or before the first Monday in July they are required to make a final report to and settlement with the comptroller and county commissioners; provided, however, that all warrants now outstanding, shall be of full force and effect, until all the faxes remaining unpaid shall have, been collected and final report and settlement made by the tax collector with the state and county authorities, and all warrants heretofore 'issued or to be issued, shall be of full force and
There is no other question raised here which jis covered by the allegations of the bill. The decree dismissing the bill is affirmed at the cost of the appellant.
Taylor and Parkhil, JJ., concur;
Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.