Wallace Bros. v. Robeson

MekrimoN, J., (after stating the facts). It was contended on the argument before us, by the learned counsel for the appellants, that they have the right in this appeal, to insist that the Court below erred in denying their motion to set aside the judgment entered against them at the August Term of that Court of 1887. Clearly, they have no such right. No error was assigned in that respect, nor was there any appeal from the judgment, which was final. Indeed, it seems that they were well satisfied, inasmuch as the Court somewhat irregularly allowed an issue of fact to be submitted to a jury that afforded them fair opportunity to prove their title, if they had any, to the goods in question. The appellees objected to the issue, the appellants insisted upon it, their counsel declaring that they only wished to raise the question presented by it. Notwithstanding their default, in the course of the action the Court, anxious to do them justice, allowed them the largest opportunity to establish their claim. *211 The single question presented for our decision by the assignment of error is: On whom did the burden of proof of the issue submitted to the jury rest? We cannot hesitate to decide that the Court below held properly that it was upon the appellants. The statute (The Code, § 331,) provides, in respect to warrants of attachment, that “when the property taken by the Sheriff shall be claimed by any person other than the plaintiff or the defendant, the claimant may interplead, upon his •filing an affidavit of his title and right to the possession of the property, stating the grounds of such right and title,” &c. Thus the person interpleading is allowed to come into the action in the course of it, not as a defendant or an ordinary plaintiff, but as an actor — in a sense, a third party, alleging, not simply that he is the owner of the property, but he must allege “his title and right to the possession of the property, stating the grounds of such right and title.” Wherefore such strictness and particularity required of the person interpleading? Is he required thus to allege his title and right of possession and the grounds thereof affirmatively, simply to compel the plaintiff in the action to disprove the same negatively ? Rather, is it not the purpose of the statute to allow him to come into the action in its course, allege and prove his title and right of possession of the property upon their real merits, and if he shall succeed, take it, without the delay and expense incident to a separate and independent action that, otherwise, he might be forced to bring? This seems, to us, to be the just and reasonable view, and the one that harmonizes with well-settled principles of law applicable. Claywell v. McGinsey, 4 Dev., 89; Churchill v. Lee, 77 N. C., 341; Hudson v. Wetherington, 79 N. C., 3; Bailey’s Onus Probandi, 27; 1 Glf. on Ev., 74; Abb. Tr. Ev., 715. Moreover, the plaintiff, by his action — the warrant of attachment and the levy of the same on the property as that *212 ■of the defendant — has acquired some right to the property for the purposes of the action, that a party interpleading ■should ordinarily be required to overthrow, by proving his better title, if he has one. In such case, the presumption is, that the property was properly levied upon as that of the defendant in the action; the warrant commanded the Sheriff to levy upon his property, and not that of another. The counsel of the appellants laid much stress on the fact, that they were in possession of the property when the Sheriff levied upon it; he insisted that such possession was evidence of title. If this be granted, the burden was on the appellants to prove such possession. It was not admitted, as alleged, but if it had been, evidence of the admission should have been produced by the appellants. But evidence of mere possession would not have been sufficient; the appellants were bound to prove their title and right of possession of the property, substantially as alleged by them and, as required by the statute. Boon v. Chiles, 10 Pet., 211. There is no error, and the judgment must be affirmed: No error. Affirmed.