Masur v. Freyn

Enloe, J. — This was an action commenced by the appellant to recover damages on account of the alleged conversion of personal property, by the appellee, of which property the appellant claimed to be the owner. The complaint was met by an answer in denial and the issues thus formed were submitted to the court for trial, and resulted in a finding and. judgment in favor of the appellee. The motion for a new trial upon the grounds that the decision of the court was not sustained by sufficient evidence, and that it was contrary to law, having been overruled, this appeal followed. Under the issues in this case the burden was upon the appellant to establish to the satisfaction of the court by a fair preponderance of the evidence: (a) That he was the owner of the property in question at the time of the alleged conversion (Gerard v. Jones, Admr. [1881], 78 Ind. 378; 8 Wait, Actions and Defenses 1199). And, also ; (b). the wrongful conversion of said property by the appellee, and its value at such time. The trial court having seen the witnesses and heard them testify, concluded that this burden, at least as to the ownership of said property, had not been discharged, and we, upon the record before us, cannot say, as a matter of law, that the trial court erred. Affirmed. Dausman, J., absent.