73 Ala. 59 (Ala. 1882), Shahan v. Herzberg

Citation:73 Ala. 59
Opinion Judge:BRICKELL, C.J.
Party Name:Shahan v. Herzberg, Simpson & Co.
Court:Supreme Court of Alabama

Page 59

73 Ala. 59 (Ala. 1882)



Herzberg, Simpson & Co.

Supreme Court of Alabama

December Term, 1882

Trial of Right of Property.

APPEAL from Etowah Circuit Court.

Tried before Hon. LEROY F. BOX.


In a trial of the right of property levied on by execution, or by attachment, the issue is, whether it belongs to the defendant and is subject to the process. The affirmative of the issue, and the burden of proof, the statute devolves on the plaintiff in the process (Code of 1876, § § 3342-5), who is regarded as the actor in the suit.-- McAdams v. Henderson, 34 Ala. 478. But if he introduces evidence having a tendency to show, and which prima facie shows, that the title resides in the defendant, the onus of proof shifts to the claimant, and, in that event, he must support his claim upon the strength of his own title--he must show in himself a legal title which would support the action of trespass, or of trover, or of detinue, if he were a plaintiff in either action, seeking to recover damages for the taking or conversion of the property, or to recover the property itself.-- Foster v. Smith, 16 Ala. 192; Lehman v. Warren, 53 Ala. 535. The fact of title is ordinarily shown by evidence, that, at the time of the levy, the property was in the possession of the defendant--possession unexplained being prima facie evidence of the ownership of personal property. If the possession at the time of the levy is in a stranger, or in the claimant, the title of the defendant may be proved, as he would be compelled to prove it, if he were the actor, subject to the burden of proof.

The general rule in reference to the relevancy and admissibility of evidence is, that facts and circumstances which, when proved, are incapable of affording any reasonable presumption or inference as to a material fact involved in the issue, ought not to be received. In other words, evidence ought to correspond to the issues; and facts and circumstances which do not tend, directly or indirectly, to prove or disprove them, can not be admitted.-- State v. Wisdom, 8 Port. 511; Governor v. Campbell, 17 Ala. 566. Subjected to this test, the evidence of Herzberg, and of Cowan, to which objection was taken, was not admissible. It had no tendency to show that the title to the cotton was in the defendant, or that the cotton was liable to the attachment. If it had upon these inquiries any bearing whatever, its tendency was to show that the defendant in attachment had parted with all interest in the cotton, upon the promise of Caleb Hope, that he would pay the debt owing to the plaintiffs. If such a promise was made, under circumstances that it would enure to the benefit of the plaintiffs, the remedy for its enforcement was a direct suit against the promisor, and not by a suit against the defendant...

To continue reading