Opinion
04-18-1811
Mayor and Commonalty of Alexandria v. Hunter. [*]
In this case a judgment of the county court of Fairfax, in favour of the mayor and commonalty of Alexandria, upon a motion in a summary way, against John Chapman Hunter, was reversed by the district court held at Hay-Market, and the motion dismissed with costs.
The Judgment (which corresponded with the notice) was for 73l. 19s. 3d. " being the amount of the assessment imposed on the property of the aforesaid John C. Hunter, in Alexandria, for paving the streets of the said town."
A bill of exceptions was filed in the county court, setting forth all the evidence exhibited; from which it appeared that the sum assessed on the property of the defendant for paving the streets was only 70l. 19s. 3d. the farther sum of 31. being charged against him for " tax on his ground."
No exception was taken to the jurisdiction of the court; neither did it appear in evidence that the defendant resided out of the county of Fairfax.
Judgment Affirmed.
Judge Cabell. Judges Roane and Fleming, concurred.
OPINION
Thursday, April 18th. The judges pronounced their opinions.
JUDGE CABELL. The evidence contained in the bill of exceptions proves, incontestibly, that the county court gave judgment, not only for the amount of taxes or assessments for paving the streets, but also for the common town tax; and, in this view of the subject, this case comes completely within the principle decreed in the case of The Mayor and Commonalty of Alexandria v. Chapman. But there are two other additional grounds on which I think the judgment of the county court should be reversed; 1st. The act of assembly gives the right to this summary remedy only in the county where the defendant resides. But it is neither stated nor proved that the defendant resided in the county of Fairfax, where this motion was made. The plaintiffs, therefore, have not shown themselves entitled to the benefit of the act, and this court cannot presume it for them; 2d. The evidence of the plaintiffs did not entitle them to recover under the notice they had given. The act of assembly requires that the defendant shall have notice, not only of the motion intended to be made, but also of the " amount of the taxes or assessments due from him," which, in my opinion, prevents the proof or recovery of any sum different from that stated in the notice. The judgment of the district court, therefore, reversing that of the county court, should be affirmed.
4 Hen. & M. 270.
Sess. Acts, 1796, c. 31.
CONCUR BY: ROANE; FLEMING
CONCUR
JUDGES ROANE and FLEMING assented; and the judgment of the district court was unanimously affirmed.
[*] Appellate Practice--Record--Evidence. --In chancery cases, the evidence is generally in the form of depositions, and is necessarily a part of the record. In all but chancery cases, the evidence is generally made a part of the record by bill of exceptions to the judgment of the court, the evidence at large, and not the facts proved in the opinion of the inferior court, being set out in the bill. Pryor v. Kuhn, 12 Gratt. 622, citing the principal case.See further, monographic note on " Bills of Exceptions" appended to Stoneman v. Com., 25 Gratt. 887; monographic note on " Appeal and Error" appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.