Indianola Tractor Co., Inc. v. Tankesly

Full title: INDIANOLA TRACTOR COMPANY, INC. v. M.A. TANKESLY et al. United States…

Court: Supreme Court of Mississippi

Date published: Sep 21, 1976

337 So. 2d 705 (Miss. 1976)

Opinion

No. 48956.

September 21, 1976.

Appeal from Circuit Court, Sunflower County, B.B. Wilkes, J..

Clark, Davis Belk, Indianola, for appellant.

Lyon, Crosthwait, Terney Noble, Indianola, for appellee.

Before PATTERSON, P.J., SUGG and WALKER, JJ., and PIGOTT, Commissioner.

JOE N. PIGOTT, Commissioner, for the Court.[fn1] [fn1] Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.

The Indianola Tractor Company secured a default judgment for $6,411.25 against M.A. Tankesly and his wife, Peggy M. Tankesly, in the Circuit Court of Sunflower County, and had issued a writ of garnishment against Valley Air Applicators, Inc. and United States Aircraft Insurance Group. Group answered that it was indebted to Tankesly in the amount of $5600 as a compromise settlement of a tort claim.

Peoples Bank of Indianola filed a motion to intervene, alleging a first lien as to the proceeds to the extent of a debt due the bank by the defendants.

Buchanan and Haltom, attorneys, filed a motion to intervene, alleging a lien for attorneys' fees on the proceeds due defendant by the garnishees.

Upon a hearing of both motions the only evidence offered was as to a lien for attorneys' fees and no evidence was offered by Peoples Bank of Indianola. However, the trial court sustained both motions to intervene and entered an order to disburse the proceeds of the garnishment writ as follows:

(1) Buchanan Haltom $1,100.00 (2) Peoples Bank of Indianola $4,384.64 (3) Indianola Tractor Company, Inc. $ 115.36.

We affirm the order of the court as to the disbursement of $1100 attorneys' fees to Buchanan and Haltom, attorneys. See Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450 (1929).

As to the claim of Peoples Bank of Indianola, the burden was upon the movant to offer evidence in support of its motion and in support of its claim. No evidence was offered by Peoples Bank in support of its motion or its claim. Burcham v. Est. of Burcham, 303 So.2d 476, 480 (Miss. 1974).

We therefore reverse and set aside the order of the lower court ordering the disbursement of $4,384.64 to the Peoples Bank of Indianola. This $4,384.64 should be added to the $115.36 and a total of $4500 disbursed to the Indianola Tractor Company, Inc.

AFFIRMED IN PART AND IN PART REVERSED AND RENDERED.

GILLESPIE, C.J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.