Opinion
No. 33043.
March 14, 1938. Suggestion of Error Overruled April 11, 1938.
1. GARNISHMENT.
Plaintiff's evidence, in judgment creditor's garnishment proceedings against dairy company alleged to be indebted to judgment debtor for milk, that judgment debtor had possession and exercised ownership and control of farm, from which milk was hauled to dairy in his truck, was in possession of and claimed to own only cattle on such farm, contracted for sale of milk to garnishee, and transacted milk business, though his checks were signed and his bank account was carried in name of his son by judgment debtor, established prima facie case for jury as to latter's ownership of proceeds of milk sold to garnishee.
2. GARNISHMENT.
Allegations of petitions, filed by judgment debtor's son and employee, claiming proceeds of milk sold by such debtor to dairy company, in garnishment proceedings against latter by judgment creditor, were not evidence and, being of no greater weight than judgment debtor's claim to such proceeds as exempt, did not meet prima facie case made for jury by judgment creditor's evidence.
APPEAL from the circuit court of Jones county. HON.W.J. PACK, Judge.
Green, Green Jackson, of Jackson, and F.B. Collins, of Laurel, for appellant.
The burden of proving ownership is upon the one alleging it, but that burden is met prima facie by proof of possession.
IX Encyclopedia of Evidence 257; 22 R.C.L. 79, sec. 58; 10 R.C.L. 1395; 5 Wigmore on Evidence, page 514, sec. 2515.
The possessor's declarations are admissible to create the presumption of ownership from possession.
3 Wigmore on Evidence, page 799, sec. 1779; Southern Wood Fiber Co. v. Thornton, 72 So. 1002, 112 Miss. 258.
With deference, it is almost incomprehensible that the court realizing the issue, and that it was a question for the jury, could have excluded all this competent testimony necessary to make out plaintiff's case, and then finally assumed the authority to determine this issue of fact when plaintiff had made out a prima facie case, and taken it from the jury altogether. So we say that in excluding plaintiff's testimony as to the ownership of the cattle and farm, and as to the control and management and contracts with reference to the sale of this milk the court erred grievously.
The full effect of plaintiff's testimony was to make out a prima facie case of ownership in J.W. Robbins. It was, therefore, improper in face of such a showing for the court to exclude plaintiff's testimony and direct the verdict. Such a showing would obviously present a question for the jury. It being a question of fact as to who was entitled to the money the court should have submitted the issue to the jury, and indeed this court so held in Southern Wood Fiber Co. v. Thornton, 72 So. 1002, 112 Miss. 258, the court there holding as digested in the syllabus: "Evidence of an execution judgment creditor who levied upon certain personal property claimed to belong to the judgment debtor held to make a prima facie case of the debtor's ownership, so that it was error to exclude such evidence and grant a peremptory instruction to find for a claimant."
Ordinarily claimant is entitled to the trial of a controverted issue of fact by a jury.
28 C.J. 390, sec. 614.
It was error for the court to direct the jury to disregard the proof offered by plaintiff as to fraud.
10 Standard Encyclopaedia of Procedure, page 548; 2 Wade on Attachments, page 130; Cummings v. Fearey, 44 Mich. 39; Reese v. Platt, 44 P. 31.
Plaintiff having taken issue with the claimants on the correctness of the contentions as to the agency contract may introduce testimony concerning all transactions between the claimants and J.W. Robbins even though this testimony is to the effect that by a fraudulent device claimants are attempting to subvert the plaintiff's right to the money in question. The court in instructing the jury to disregard was excluding testimony relevant to the issue and thereby erred to the prejudice of the plaintiff.
The court below erred in determining claimants issue before disposing of the debtor's claim to an exemption as required by Section 1847, Code of 1930.
Plaintiff's testimony makes out a prima facie case of the ownership of the cattle in J.W. Robbins. The claimants produced no testimony whatsoever contradictory to this. We believe that their failure to rebut these facts leaves them without any ground to stand on.
28 C.J. 381; Hoff v. Eddy, 123 S.E. 187.
Welch Cooper, of Laurel, for appellees.
While the practice is not universal, the burden of proof upon the issue as between plaintiff and claimant is upon the claimant. In some jurisdictions this burden includes the establishment of the validity of the claim and its priority. In others plaintiff has the burden of showing such invalidity and likewise must establish its own priority.
28 C.J. 386, sec. 609; Sec. 1853, Code of 1930; Wineman v. Clover Farm Dairy, 151 So. 749.
The appellant having tendered an issue and having assumed the burden, cannot now complain.
Even if there was error in one or two particulars in the matter of the exclusion of evidence, nevertheless, it was harmless error. The plaintiff simply failed to make proof of the facts from which a reasonable inference could be drawn that money due from Dan-Dee Dairy Products was due to J.W. Robbins individually and not to T.C. Robbins and C.P. Cowan.
This case is one without any badge of fraud, whatever. There was an issue of fact to be determined in this case. We say that there was only one issue of fact and that is, was the money owed by Dan-Dee Dairy Products, Inc., garnishee in the case, owed for milk, due to T.C. Robbins and C.P. Cowan or was it due to J.W. Robbins. The affidavits filed by Cowan and by T.C. Robbins show that J.W. Robbins was acting as the agent of T.C. Robbins. Issue was joined on this. The burden was on the plaintiff and the plaintiff did not offer one word of testimony that was inconsistent with the claim of T.C. Robbins and C.P. Cowan. The things testified to by Mr. Vick were not inconsistent with the claim of T.C. Robbins and C.P. Cowan.
T.C. Robbins said in his affidavit that he owned the farm and that he owned the cows and that the milk from these cows was taken to the Dan-Dee Dairy Products Company and sold by his agent, J.W. Robbins, for his account and that one half of the milk belonged to C.P. Cowan. The issue was taken on this affidavit by the plaintiff. That was the only issue in the case and, therefore, delivery of the milk by J.W. Robbins did not make out any prima facie case that the milk was his and that the money was due to J.W. Robbins and not to T.C. Robbins and C.P. Cowan.
There was a judgment obtained in the county court of Jones county by the appellant against J.W. Robbins; and subsequently there was a suggestion of garnishment; a writ of garnishment against the Dan-Dee Dairy Products Company, Inc.; an answer of the garnishee denying any indebtedness, etc., to the judgment debtor; a contest of the answer of the garnishee by the judgment creditor, which set forth that he had been informed by the president of the garnishee corporation that the said J.W. Robbins came to him and made arrangement for the delivery of milk to the garnishee for which an indebtedness was due and owing; a petition filed by T.C. Robbins claiming the money as the proceeds of milk produced on a farm owned by the petitioner, in which petition it was alleged that J.W. Robbins, as agent of petitioner, had contracted with C.P. Cowan to give the said Cowan one-half of the proceeds of the milk sold from petitioner's cows as compensation for services rendered in feeding and milking the cows; the petition of C.P. Cowan setting forth the same facts alleged in the petition of T.C. Robbins; the petition of the judgment debtor, J.W. Robbins, asking to be allowed to intervene in the proceedings and claim the money found to be due by the garnishee to him, as exempt; and an amended answer of the garnishee admitting an indebtedness then due and owing in the sum of $103.56, and which amended answer suggested that although the garnishee had never seen T.C. Robbins, nor had any dealings with him, it had been informed that he would claim the money and should be summoned to court to propound his claim, and which further suggested that J.W. Robbins would perhaps claim the money as exempt.
The trial of the claimants' issues in the county court was not stayed, as provided for under the mandatory requirements of section 1847, Code 1930, until the claim of the judgment debtor, J.W. Robbins, to the money, as exempt, was tried and disposed of; but the cause proceeded to trial on the claimants' issues, when the appellant, as plaintiff in execution, assumed the burden of proof and undertook to show that the money was subject to the judgment as the property of the judgment debtor.
The proof offered by appellant disclosed that the judgment debtor was in possession of the farm, from which the milk was hauled to the dairy in his truck, and that he was exercising ownership and control thereof; that he was in possession of a herd of cattle on this farm, claiming them as his own; that he made the contract and transacted the business, although his checks were signed, and his bank account was carried, in the name of "T.C. Robbins by J.W. Robbins" from the year 1931 to the date of the trial; that the appellant was engaged in operating a filling station, where the judgment debtor carried his account in the name of T.C. Robbins and paid with checks signed "T.C. Robbins by J.W. Robbins," but that on the one and only occasion when T.C. Robbins ever purchased gas and oil at the station, he paid for it himself; that T.C. Robbins had nothing to do with the operation of the business, and for aught that appears in the record he is not shown to have had any access to the bank account carried in his name by J.W. Robbins, or that he personally received the proceeds of any checks which had been previously given in payment of milk delivered to the garnishee by J.W. Robbins.
Considering the relationship of father and son which existed between the judgment debtor and T.C. Robbins, together with the fact that it does not appear that there was any other herd of cattle on the farm from which the milk was hauled by the judgment debtor than the one shown to have been in his possession and over which he exercised ownership and control, together with the other testimony offered, we think that under the authority of the case of Southern Wood Fiber Company v. Thornton, 112 Miss. 258, 72 So. 1002, the proof offered established a prima facie case as to the judgment debtor's ownership of the proceeds of the milk in question; that the allegations of the claimants' petitions to the contrary, not being evidence, and being of no greater efficacy and weight than the claim of the judgment debtor to the same money as exempt, did not meet the prima facie case made; and that in view of the facts testified to, as well as some of the other testimony that was excluded, it was error to grant the peremptory instruction in favor of the claimants, in the absence of any proof to support their claims. In the case of Southern Wood Fiber Co. v. Thornton, supra, it was said: "The testimony of the witnesses introduced by the appellant showed that the execution debtor, C.J. Thornton, was in the entire management and control of the property levied on. It is true that he may have been the manager or agent for his wife. However, the claimant failed to introduce any testimony whatever upon this proposition. We therefore think that the appellant made out a prima facie case, and that it was error to grant the peremptory instruction and exclude the testimony. Ketchum Cummings v. Brennan, 53 Miss. 596."
The judgment of the circuit court affirming the decision of the county court must, therefore, be reversed.
Reversed and remanded.