 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Bell v. Smith2/4/1992
then upon Appellee to prove good faith. He failed to meet this burden by presenting no evidence to substantiate his claim that he had no income from which to pay the judgment.
In the case of Payne v. Gilmore, 382 P.2d 140 (Okl. 1963) the employer filed a claim for workers' compensation against his employer who did not carry workers' compensation insurance. The employer transferred all his property to his wife and his minor son. The award was not paid and the employer began proceedings in aid of execution. The defendant "stripped himself of everything he owned", but continued to work at the place of business without a salary. The Payne Court held these facts sufficient to raise an inference of fraud to shift to the debtor the burden of going forward with the evidence. The Court reversed with orders to sustain Payne's motion stating:
We are aware of the holding of this court in State ex rel. Mothershead v. Mobley, 112 Okl. 152, 241 P. 155, and similar cases, to the general effect that the burden of proving fraud is upon the one alleging it, and that fraud must be clearly proven and will not be implied. These are in accordance with the broad general rule that the burden of proof never shifts. However, it is equally well settled that the burden of going forward with the evidence can and does shift under proper circumstances. Id. at 145.
Appellant met his burden of proof to show the existence of sufficient income to warrant installment payments under ordinary circumstances. The debtor must then have affirmatively shown that his reasonable expenses were sufficient to offset the claim. 33 C.J.S. Executions § 383, n. 6. Appellee did not make this showing.
The District Court should not have overruled Appellant's Motion absent an affirmative showing by Appellee that income was insufficient to pay installments on the judgment. The judgment was rendered against the clear weight of the evidence and against the unambiguous language of 12 O.S. 1910 § 850 . We therefore reverse and remand for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HANSEN, V.C.J., and HUNTER, J., concur.
Page 1 2 Oklahoma Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|