Tax, Remedy for unlawful taxation. Jurisdiction. Equity Pleading and Practice, General appearance.
International Paper Co. v. Commonwealth, ante, 7, affirmed.
Want of jurisdiction of the court over the subject matter of a proceeding is not waived by a general appearance.
RUGG, C.J.
This is a petition under St. 1909, c. 490, Part III, § 70, to recover an excise tax alleged to have been exacted contrary to law. It was paid on April 25, 1917. This petition was filed within six months thereafter, on October 22, 1917. On the same day an order of notice was taken out, returnable in January, 1918. But it was not served and does not appear ever to have been in the hands of an officer. Another order of notice was taken out on March 14, 1918, returnable on the first Monday of May, 1918, and service was accepted on April 4, 1918. A motion to dismiss was filed on May 22, 1918, on the general ground that the petition was not brought and notice thereof served within the time prescribed by the statute. The case as thus stated is in all material facts like International Paper Co. v. Commonwealth, ante, 7, just decided, and governed by the same principles.
There is one fact absent in that case which is present here, viz., that a general appearance was filed on May 8, 1918, in behalf of the Commonwealth. That fact, however, makes no difference with the result to be reached. As has been pointed out in the opinion in the International Paper Company case, compliance with all essential terms of said § 70 is a condition precedent to the jurisdiction of the court to entertain and adjudicate the petition. Cheney v. Assessors of Dover, 205 Mass. 501, 502, and other cases cited in International Paper Co. v. Commonwealth, ante, 7. Want of jurisdiction in the court over the subject matter of the suit is not waived by a general appearance. Custy v. Lowell, 117 Mass. 78. McGrath v. Watertown, 181 Mass. 380. Humphrey's Case, 226 Mass. 143. Cheney v. Boston Maine Railroad, 227 Mass. 336.
Therefore, there is no room for the application of the rule of practice that, where the defence relates to jurisdiction over the person by a court having jurisdiction of the cause, a general appearance waives formal defects as to the getting of the defendant before the court. Riley v. Brusendorff, 226 Mass. 310,312. Moreover, it is doubtful whether under any circumstances a motion to dismiss such as this would be waived by anything short of an unqualified answer on the merits. This matter was properly and seasonably pleaded by a motion to dismiss. McRae v. New York, New Haven, Hartford Railroad, 199 Mass. 418.
Petition dismissed with costs.