Dunn v. Hart

Smith, C. J., delivered the opinion of the court. The appellant sued out an attachment for rent to recover the sum -of one hundred and sixteen dollars, alleged to be ’ due him by his tenant, McKeever, and the [148] writ was levied upon, two-bales of cotton in the possession of a compress company. The appellees, claiming to be the owners of the cotton, filed an affidavit to that effect under the provisions of section 2868, Code of 1906 (section. 2366, 1 Hemingway’s Code), and the case was heard thereon by a justice of the peace, and in due course, came to and was tried in the court below, resulting therein in a verdict and judgment for the claimants. There is no merit in either of the questions submitted to us by the appellant’s assignment of errors, one of which is thát by several instructions the jury were charged that the burden of proving that the cotton here in question was subject to a lien for rent in his favor was on the appellant. In support of his contention that this charge to the jury was erroneous, the appellant invokes the provisions of section 2869, Code of 1909 (section 2367, I Hemingway’s Code) which provides that: “On the trial of the issue between the landlord and such claimant, the burden of proof to show ownership in the property shall be on the claimant.” ' In a proceeding of this character the claimant is the plaintiff, and has the burden of proving his ownership of the property involved. By proving ownership the claimant makes out a prima-facie case, and the burden then shifts to the landlord, the defendant,’ to prove that, notwithstanding the fact that the property is owned by the claimant, when he acquired it, it was and still is subject to a lien for rent in his, the landlord’s, favor,- consequently .the court below committed no error, in granting the instructions here called in question. Lavigne v. Russ, 36 Miss. 326. This case having originated in a court of a justice of the peace, the case of Wright v. Craig, 92 Miss. 218, 45 So. 835, is not here in point; the question presented there being primarily one of pleading. Affirmed.