Retzer v. Wood
109 U.S. 185 (1883)

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U.S. Supreme Court

Retzer v. Wood, 109 U.S. 185 (1883)

Retzer v. Wood

Submitted November 1, 1883

Decided November 12, 1883

109 U.S. 185

Syllabus

The idea of regularity, as to route or time, or both, is involved in the words "express business," under § 104 of the Act of June 30, 1864, c. 173, 13 Stat. 276, and those words do not cover what is done by a person who carries goods solely on call and at special request, and does not run regular trips or over regular routes.

In the absence of a statutory rule to the contrary, the defense of a statute of limitations, which is not raised either in pleading, or on the trial, or before judgment, cannot be availed of.

In a suit to recover back internal revenue taxes, tried by the circuit court, without a jury, the court having found the facts, and held that the taxes were illegally exacted, but that the suit was barred by a statute of limitation, rendered a judgment for the defendant. On a writ of error by the plaintiff, the record not showing that the question as to the statute of limitations was raised by the pleadings, or on the trial or before judgment, and the conclusion of law as to the illegality of the tales being upheld, this Court reversed the judgment, and directed a judgment for the plaintiff to be entered below.

This suit was commenced in a court of the State of New York, and was removed by the defendant into the Circuit Court of the United States for the Southern District of New York by a writ of certiorari. The defendant was a collector of internal revenue, and exacted and collected from the plaintiff at various times in the years 1866, 1867, and 1868, sums of money amounting

Page 109 U. S. 186

in all to $61.30, as a tax of 3 percent on the gross amounts of the plaintiff's receipts from his business, under the provisions of § 194 of the Act of June 30, 1864, c. 173, 13 Stat. 276, which enacted,

"that any person, firm, company, or corporation carrying on or doing an express business, shall be subject to and pay a duty of three percent on the gross amount of all the receipts of such express business."

The suit was commenced June 2, 1874. The plea was the general issue. The statute of limitations was not pleaded. A jury having been waived by a written stipulation of the parties, the action was tried before the court without a jury. The court found the fact of the dates and amounts of the exactions, and these further facts: the plaintiff's business was the carrying of goods between New York and Brooklyn, and from one place in the City of Brooklyn to another place in the same city. He did not run regular trips, nor over regular routes or ferries, but where ordered. He had a place in Brooklyn where he received orders on a slate from persons who wished articles sent from there to New York, and from one place in Brooklyn to another place in Brooklyn. The goods were carried in wagons. They were of a miscellaneous character, such as boxes of dry goods, barrels of sugar, rolls of sole leather, trunks, and general merchandise. His business was done solely upon call, and at special request, and, as requested, he sent to any place in either of said cities and took baggage or freight to any place in either of said cities. On the 28th of May, 1873, he presented to the Commissioner of Internal Revenue a claim, supported by his own oath, for the refunding to him of the moneys so exacted as taxes. No decision was ever made on the claim. The court found as conclusions of law (1) that the tax was illegally exacted; (2) that the action was barred by § 44 of the Act of June 6, 1872, c. 315, 17 Stat. 257. A judgment was rendered for the defendant. To reverse that judgment the plaintiff brought this writ of error.

There is in the record a bill of exceptions which shows that, after the plaintiff had given evidence to establish the facts so found, the defendant offering no testimony, the plaintiff requested the court to render judgment for the plaintiff, but the

Page 109 U. S. 187

court refused, and the plaintiff excepted, and the court directed a judgment for the defendant, and the plaintiff excepted.

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