C. Atkinson Sons Co. v. Brinson McCullough Co.
| Decision Date | 17 February 1930 |
| Docket Number | 28432 |
| Citation | 156 Miss. 556,126 So. 191 |
| Court | Mississippi Supreme Court |
| Parties | C. ATKINSON SONS CO. v. BRINSON MCCULLOUGH CO |
GARNISHMENT. Garnishee's admission before garnishment, that it possessed judgment debtor's property, held insufficient to overcome proof property was no longer in garnishee's possession.
The admission made by a garnished person before the service of the garnishment, that the defendant, in a judgment, had property in the possession of the person garnished, is not sufficient to overcome positive proof by the records of the garnishee and by the records of a compress company, not controlled by the garnishee, that the property referred to in the alleged admission had been sold and shipped out of the state prior to the date of the conversation, where the attention of the person making the admission was not directly called to the question as to whether he then had possession or merely whether the judgment debtor had sold cotton to the garnishee. In such case where the proof of the garnishee is undisputed, and is only contradicted by such admission made prior to the service of garnishment, the garnishee was entitled to a peremptory instruction.
APPEAL from circuit court of Lawrence county HON. G. Q. LANGSTON Judge.
Garnishment proceeding by the Brinson McCullough Company against the C. Atkinson Sons Company, garnishee. From an adverse judgment, garnishee appeals. Reversed and rendered.
Judgment reversed.
Will A. Parsons, of Summit, for appellant.
The burden of proof is upon the party seeking to profit thereby to show the authority of the officer or agent to make the statement he is claimed to have made either by showing a special authority to make the statement or by showing that the declaration or admission was of such a character as to illustrate some act being done in the line of the officer's duty and connected with it as a part of the res gestae. Bernheim et al. v. Harn et al. (Miss.), 4 So. 539.
Henderson Woolen Mills v. Edwards, 84 Mo.App. 448; Winchester et al. Mfg. Co. v. Creary, 116 U.S. 161; Peoples Natl. Bank v. Harper, 114 Ga. 603, 40 S.E. 717; Warner v. Warner, 46 N.Y. 228, 16 Cyc. 1008; Winter v. Burt, 31 Ala. 33; McKensie v. Stevens, 19 Ala. 691; Fairfield County Turnpike Co. v. Thorp, 13 Conn. 173, 16 Cyc. 1021; Wellington v. Boston, etc., R. R. Co., 158 Mass. 185; Hueber v. Erie R. Co., 69 N.J.L. 327, 55 A. 273; 16 Cyc. 1023; 10 R. C. L., page 990; Mateer v. Brown, 1 Cal. 221; Lane v. Bryant, 9 Gray (Mass.) 245, 69 Am. Dec. 282; Penelton v. Keith, 23 R. I. 164; 54 L.R.A. 671; 2 Chamberlayne, Modern Law of Evidence, par. 1340; 1 Greenleaf on Evidence (16 Ed.), par. 184; Snyder Cigar Co. v. Stutts (Ala.), 107 So. 75; Stanton v. Baird Lumber Company, 32 So. 299; Naval Stores v. Pugh et al. (Ala.), 47 So. 49; Meador & Son v. Standard Oil Co., 72 So. 34; Ala. Power Co. v. Talmadge, 93 So. 548; U. S. Cast Iron Pipe Co. v. Caldwell, 94 S. 540, 20 Ala. 260; Minea v. St. Louis Cooperage Co. (Mo.), 162 S.W. 741; Bernheim et al. v. Hahn et al., 65 Miss. 462, 4 So. 539.
No brief filed for appellee.
The Brinson McCullough Company obtained a judgment against one Will Rutland in Lawrence county in February, 1923, for three hundred forty-two dollars and fifty-six cents, and on February 8, 1928, a representative of Brinson McCullough Company went to C. Atkinson Sons Company, a mercantile firm doing business in Pike county, and made some inquiries as to whether Will Rutland had any cotton there. The bookkeeper, the son of C. Atkinson, turned to his book and said that there were two bales on the book that were in Mr. Rutland's name. About that time Mr. Jackson, the manager of C. Atkinson Sons Company, came in and made inquiries as to what they were talking about; the witness stated that he then turned his attention to Mr. Jackson and asked him if Mr. Rutland had any cotton there, and Mr. Jackson answered that he had. The witness asked if the cotton was in Rutland's name or his wife's name, and Jackson said it was in his name; the witness then asked him how many bales Rutland had; Jackson replied that he had several bales but it would take some time to find it; that Jackson then turned off, apparently thinking the witness was hunting something. The witness went on to Magnolia and took out a garnishment. The judgment was enrolled in Pike county on the 9th day of February, 1928, and garnishment issued the same day and served the same day upon C. Atkinson Sons Company.
On the 23rd day of February, C. Atkinson Sons Company...
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