Mansur-Tibbetts Imp. Co. v. Davis

• Decision Date: 08 February 1896
• Citation: 33 S.W. 1074
• Parties: MANSUR-TIBBETTS IMP. CO. v. DAVIS.
• Court: Arkansas Supreme Court

33 S.W. 1074

MANSUR-TIBBETTS IMP. CO. v. DAVIS.

Supreme Court of Arkansas.

February 8, 1896.

Appeal from circuit court, Miller county; Rufus D. Hearn, Judge.

Action in attachment by Mansur-Tibbetts Implement Company against Robert Ellis. N. L. Davis intervened, claiming the goods by a purchase for defendant. There was a judgment for intervener against plaintiff, and plaintiff appeals. Reversed.

W. H. Arnold, for appellant. T. E. Webber, for appellee.

PER CURIAM.

This was an attachment by the Mansur-Tibbetts Implement Company against Robert Ellis in the Miller circuit court, on the ground that he had disposed of his property with the fraudulent intent to cheat, hinder, and delay his creditors. N. L. Davis, the appellee, interpleaded, claiming the goods by purchase from the defendant. Defendant, Ellis, filed affidavit controverting the affidavit for attachment; and, on the trial of this issue, judgment was for plaintiff for its debt, and the attachment was sustained. Thereupon plaintiff filed answer to interplea, admitting the sale by defendant to interpleader, and the delivery to him of the possession of the goods sold, as alleged in the interplea, previous to the issuance of the writ of attachment, and that the property was so in the possession of the interpleader when the writ of attachment was served by the sheriff, but alleged that at the time of said sale by defendant, Ellis, to interpleader, Davis, the defendant was largely indebted, and was in fact insolvent, and that said sale and transfer was without consideration, and for the purpose of cheating and defrauding the defendant's creditors, and of hindering and delaying them in the collection of their debts. Before the introduction of testimony, plaintiff asked to assume the burden of proof, and this was refused; and after the evidence was all in, and the instructions settled, plaintiff moved the court, as it had admitted the sale to and possession of the interpleader, and thus made a prima facie case for him, and as the remaining issue was as to the bona fides of said sale, as to which issue the burden was on it, to permit it to open and conclude the argument. This motion was overruled, and plaintiff reserved exceptions.

Section 2927, Sand. & H. Dig., reads thus: "The party holding the affirmative of an issue must produce the evidence to prove it." Section 2928: "The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side." The...