Rickets v. Rickets

• Decision Date: 19 November 1928
• Docket Number: 27410
• Citation: 119 So. 194,152 Miss. 792
• Court: Mississippi Supreme Court
• Parties: RICKETS v. RICKETS. [*]

119 So. 194

152 Miss. 792

RICKETS v. RICKETS. ^[*]

No. 27410

Supreme Court of Mississippi

November 19, 1928

Division B

Suggestion of Error Overruled Dec. 17, 1928.

APPEAL from chancery court of Sunflower county., HON. J. L WILLIAMS, Chancellor.

Suit by Sabra A. Rickets against D. P. Rickets to enjoin defendant from negotiating certain bank time certificates of deposit. A temporary injunction was issued, and defendant moved to dissolve injunction. From an order overruling defendant's motion, defendant appeals. Affirmed in part, and reversed in part, and remanded.

Affirmed in part, reversed in part, and remanded. Suggestion of error overruled.

Chapman, Moody & Johnson, for appellant.

The lower court, on the hearing of the motion to dissolve the injunction ruled that the burden of proof was on the movant appellant. This is a harsh rule and is logically unsound when it is considered that the right to an injunction depends on the right to relief. If there is no right to relief, then there is no right to the injunction.

The right to relief, of course, depends upon a favorable decision of the issue of fact affirmed, and the burden of proof is on the affirmant to prove the facts. If the right to the injunction, which merely preserves the status quo, is dependent on the right to relief, and if the right to relief depends upon a favorable decision of the issue of fact affirmed, and the burden of proof rests with the complainant to prove the facts, then it follows that the burden of proof does not shift, though the burden of evidence may do so. 22 C. J. p. 68, 76 et seq. This is especially true with reference to the hearing of a motion to dissolve an injunction granted on an ex parte application. See Chancery Rule XXII, Griffith's Miss. Chan. Prac. 83; Williams v. State, 124 Miss. 720, 87 So. 273.

A mere perusal of the bill of complaint is sufficient to convince the court that this rule was not complied with. However that may be, on an ex parte application it is not necessary that the facts alleged be proved, but only that the bill clearly show a just case for the writ.

Therefore, on an ex parte application, no issue is presented as to whether the facts alleged are true, but only, assuming that the facts are as alleged, a just case for the writ is presented. Surely it would be unjust to hold that a defendant is concluded by a decision of fact, even temporarily, without an opportunity to be heard. But a different rule may apply if a defendant has an opportunity to be heard. If with notice the defendant appear, or fail to appear, it may be true that he is, temporarily at least, bound by the decision of fact or law, and if thereafter he challenges such decision the burden should be on him to show that it is erroneous, either as to a decision of the issue of fact or law. Yet, having no opportunity to be heard, why should he be bound by such a decision, or rather why should the burden shift to him to prove that the decision of the issue of fact is erroneous? Justice should, and we think does, demand that a complainant, on an ex parte application, who obtains an order, based on a statement of facts, when such order is challenged, have the burden of proving, at least prima facie, that such a decision of an issue of fact is correct, for otherwise a defendant would be concluded, for a time at least, without an opportunity to be heard.

The affidavit to the bill of complaint was made by one of the attorneys for the complainant, not by the complainant. This of course was authorized, yet such an affidavit should state whether the allegations made on information and belief, are on the information and belief of the complainant or of the attorney; and statements within the knowledge of the affiant must be stated to be within his knowledge. Sec. 767, Hem. Code 1927; Waller v. Shannon, 53 Miss. 500; Burks v. Burks, 66 Miss. 494, 6 So. 244. In the instant case the affidavit does not so state. Furthermore, on the hearing below, the same attorney voluntarily testified, in effect, that he had no personal knowledge of the material facts now under consideration. Sec. 382, Hem. Code 1927; Derdeyn v. Donovan, 81 Miss. 696, 33 So. 652; Richardson & May v. Lightcap, 52, Miss. 508; Foxworth v. Magee, 48 Miss. 532.

On the hearing below the complainant objected to the introduction of certain receipts, executed by her, evidencing the payment of specific sums of money on different dates, and certain checks, given by the defendant, for money advanced to or for the complainant. The grounds of objection, in substance, were that such receipts and checks were incompetent because not pleaded, and irrelevant and immaterial because they did not prove or tend to prove the issue of fact presented. The bill charges that the defendant had in his possession one hundred fifty-seven thousand four hundred thirty-seven dollars and five cents, evidenced by the term certificate of deposit, which belonged to the complainant, that is that she was the owner thereof. That this particular sum of money, evidenced by such term certificate, was deposited by the defendant in his name "in certain banks in the state of Mississippi." Therefore, the issue of fact presented by the bill of complaint is whether this particular sum of money on deposit in the name of the defendant, "in certain banks in the state of Mississippi" and afterwards, by the defendant, converted into the term certificate or deposit, belonged to the complainant. These are the facts affirmed by the complainant, the affirmation of which is denied by the defendant.

The defendant, by answer under oath, specifically denied that all or any part of said sum of one hundred fifty-seven thousand four hundred thirty-seven dollars and five cents put to his credit "in certain banks in the state of Mississippi," and said term certificate of deposit belonged to the complainant. In order to prove that the defendant never received from the complainant this large amount of money, or any material portion of it, she, the complainant, was placed on the witness stand in order to ascertain from her every possible source from which the defendant could have received money for her or belonging to her, from the total of which there should be deducted all sums of money that he paid out for her. If it could be established by proof that the complainant never had any money that the defendant or anyone else could have received, the inference would be conclusive that this particular money did not belong to her. Or, if it could be established by proof that all money which the defendant did receive for the complainant was accounted for by him to her, the inference is likewise conclusive that this particular money did not belong to her, as she charges. But, it is said, this evidence tends to prove an affirmative defense which should have been pleaded; otherwise it is incompetent. It is sufficient to say that if the bill had charged that this particular amount of money was merely received by the defendant he could meet such an allegation or issue in two ways. He could, in the first place, deny it, and any evidence, circumstantial or otherwise, that would tend to disprove it would be competent. On the other hand he could admit it, and in avoidance of such admission proceed to account for it. In the latter case the defense would be affirmative and should be pleaded. This should be so evident as not to need argument. But this is not the case presented.

The defendant does not, in this case, attempt to escape liability by proving that he accounted for this particular money, and he could not from the very nature of the case do so, for it is charged that he had it in his possession. The allegation is that the defendant had on deposit in his name "in certain banks in the state of Mississippi" one hundred fifty-seven thousand four hundred thirty-seven dollars and five cents, which belonged to the complainant, and which he afterwards withdrew and deposited in a bank in Los Angeles, receiving therefor its term certificate of deposit, which, at the time the bill was filed, he had in his possession. To meet the truth of this allegation, the complainant, as an adverse witness, was put on the stand to prove by her all possible money that the defendant could, under any circumstances, have received for her. The defendant then proved that he paid out to and for her all of the money so received. If that be true, then this particular money could not belong to her. This is evidence, not in support of an affirmative defense, but evidence in rebuttal of evidence by which the complainant seeks to prove the issue of fact affirmed, which is by the defendant denied.

The court erred in overruling the motion to dissolve the injunction, theretofore granted. It is contended that on the evidence, introduced on the trial below, the motion should have been sustained and the injunction dissolved. The fact put in issue by the bill of complaint is the ownership of the particular term certificate of deposit, heretofore referred to. The complainant claims that she is the owner thereof, which the defendant denies. The issue of fact is clear-cut, whatever may be said of the proof or evidence offered to prove or disprove it. If this fact is not true, the right to the injunction must fail. The evidence discloses that when this suit was filed, and prior to this trial below, this term certificate of deposit, which is the subject-matter of this suit, was in the possession of the appellant. Possession by the appellant of this term certificate of deposit, the subject-matter of this suit, is prima-facie evidence of ownership. The law, as to this, is elementary, and authority is cited merely as a matter of form. 9 Enc. of Ev. 257; 22 C. J. 126, sec. 65.

While it is true that the question as to...