51 Ark. 447 | Ark. | 1888
This is an action in favor of the appellee, to recover of the' appellant twenty-five dollars, the value of a hog. It was tried in the Sebastian circuit court upon an agreed state of facts, substantially as follows: The hog belonged to plaintiff; it was worth twenty-five dollars; it was sold by the defendant’s marshal, who assumed to act by the authority of a city ordinance; the ordinance was in full force, prohibited the running at large of swine on the streets and unenclosed grounds of the city, and cast upon the marshal the duty to take up and impound swine found at large in violation of the ordinance.
The ordinance further provides that ‘ ‘ within two days after impounding the animal the city marshal shall cause to be posted in three public places in the city limits a notice of the same, containing a description of the animal so impounded, the date of impounding, and notice that the same shall be sold at public auction, to the highest bidder, five days from the date of said notice, unless said animal shall be reclaimed before that time, ’ ’ There was evidence tending, upon the one side, to prove that the prescribed notice had been given; and, upon the other, that it had not been given. There was no other issue in the cause. The plaintiff asked and the court gave the following instructions: ‘1 That the burden of proof is upon the defendant city to show by a preponderance of the testimony, that the city marshal complied with the ordinance read in evidence, by giving the notice therein required,. before making the sale.” To this action of the court the defendant excepted, and asked the court to give instructions placing the burden of proof that notice was not given on the plaintiff. The court refused to give the instruction asked, and the defendant excepted.
There was verdict and judgment for the plaintiff, from which the defendant prosecutes this appeal. The only error complained of, is the action of the court in giving the instruction asked by the plaintiff and refusing the one asked by defendant. Did the law cast upon the plaintiff the burden of proving that the notice had not been given? Or was the burden cast on the defendant to prove that it had been given? A sale without the notice would be a nullity. In one case, where notice had been given for a time less than that required, by only a part of a day, the sale was held void. In another, the law required ten days’ notice and but eight days’ notice was given, and the sale was held void. Notice is required to apprise the owner that his animal is impounded and will be sold unless reclaimed. In the ordinance under consideration, the notice is given by posting bills in three public places in the city; and if the animals posted are not reclaimed in five days, they are sold by the marshal, and title transferred. Notice is the fact that imparts validity to the marshal’s act, and deprives the owner of title to his property. It is the warrant of the officer. It is affirmative, defensive matter; it is matter peculiarly within the knowledge of the city. In so large a city as Fort Smith, while the city could easily prove whatever notice it gave, it would be exceedingly difficult for the owner to prove that no notice had been given. Any number of persons might testify that they had not seen the notices; still the fact would not be proven that notices had not been posted. That is the best proof the owner could offer. If the notice had been given, it was done through the agent of the city, who could be called and easily establish the fact.
A general rule of evidence requires “that the issue must be proved by the party who states an affirmative; not by the party who states a negative.” Another, that “the onus probandi lies on the party who wishes to support his case by a particular fact which lies more peculiarly within his knowledge, or of which he is supposed to be cognizant.” Bailey’s Onus Pro., page I.
If the action of the lower court should be tested by these rules there would be little doubt that it was correct.
In the case of Rose v. Ford, 2 Ark., 26, a sheriff made return upon a summons in the following language: “Executed the within by reading, April 9, 1839.” The rule under consideration was invoked to sustain the return. The court held the service bad, and declared that the rule raised for facts stated the presumption of truth, but could not be invoked to supply necessary facts that were omitted.
The judgment is correct and will be affirmed.