Louisville & Nashville Railroad v. Sharp , 131 Ala. 623 ( 1901 )

DOWDELL, J.

The claim interposed' in this case conforms to the requirements of the law and the court properly' overruled plaintiff’s objection to the same. Code, § 2200.

In a trial of the right of property where a claim is interposed, the statute provide®' for the issue to be made up under the direction of the court.' — 'Code, §§ 2200, 1112. The issue when properly made is an affirmation on the part of the plaintiff that the property levied on Tinder the attachment is the property of the defendant in attachment and subject to levy, and a denial by the claimant. The plaintiff is the actor in the suit, and on him rests the burden of maintaining the affirmative fact asserted by the levy; that is, that the property levied on is the property of the defendant. — Rhodes v. Smith, 66 Ala. 174; Code, § 4142.

In answer to the claim interposed, the plaintiff sought by special plea No. 2 to set up what seems to have been intended as an estoppel. In the first, place, under the issue when made up as the statute directs, after the plaintiff, on whom the law places the burden of proof in the first instance, has shown a prima facie case, he may show in rebuttal of the case made by the claimant any facts ’which in law would be a good defense against the claim of the claimant, whether by estoppel or otherwise. In the second place, the facts seit up in plea 2 'are insufficient to create an estoppel. The fact that the course of dealing between the claimant and O. A. Sharp & Co. was unknown to plaintiff, ■cannot under the circumstances in this case1, operate to defeat her title to the funds in question. The court, therefore, committed no error in striking, on claimant’s motion, what is designated as plea 2.

The portion of the testimony objected to by plaintiff went directly to the establishment of claimants title to the funds in question, and was, therefore, relevant and legal, and the court committed no error in overrul-. ing the objection.

The evidence without conflict showed that the money ■garnished in the hands of Haas & Co. was the purchase piice of a car load of apples sold by the defendants in attachment, Sharp & Co., to Haas & Co., and that the apples were the property of the claimant, and that Sharp & Co. in making the sale did so as the agents or brokers of the claimant. On this undisputed evidence the claimant was entitled to the general charge, which the court gave at her .request. We are of the opinion that no error was committed by the court below and the judgment will be affirmed.

Affirmed.