A. A. Lagomarcino & Co. v. Quattrochi

89 Iowa 197 | Iowa | 1893

G-kangek, J

The only question for determination is that of the burden of proof. It is held by the appellant that the answer “does not contain a denial of anything alleged by the intervenor.” The property was taken on the attachment from “A. A. Conklig’s frame building” as the property of the defendant. The intervenor’s petition recites “that he is the owner of the personal property in A. A. Conklig’s frame building; * * * that this intervenor was at the date of the said levy, and now is, the ownér of said property; * * * that this intervenor acquired the said goods by purchase from said defendant from time to time,” etc. Under these averments, the intervenor can recover only by proof that he owned the property at the date of the filing of his petition. If he did not then own the property, he could not recover. This ownership could be established by the admissions of the plaintiff or by proofs of the defendant. The fact of ownership would be admitted, if not denied. The answer of the plaintiff says in terms: I “deny that the said intervenor was on the day when he filed his petition of intervention the owner of the property, * * * or entitled to its possession.” It seems to us that this is a plain denial of ownership.

Importance is attached to the fact that intervenor’s possession at the time of the levy is not denied, and the rule of law is urged that possession of personal property is presumptive evidence of ownership. See 1 Grreeuleaf on Evidence, section 34; Wallace v. Wallace, 62 Iowa, 651. The rule does not apply to this case. This property belonged to the defendant, under the claims of both parties, at one time; and the real issue was, as presented, had the intervenor purchased it? He averred that his ownership was by purchase. Mere possession would not prove purchase. Under the intervenor’s statements, if he had not purchased the property, he did not own it. We think he assumed by his pleading the burden of showing a purchase. The district court did not err, and its judgment is affirmed.’