McLean v. HattanMcLean v. Hattan
- Reporters:
- , ,
- Before:
- Cobb
(After stating the facts.)
In twо of the grounds of the motion for a new trial complaint Is miade of the admission of evidencе, on the ground that it is immaterial and irrelevant. To еach ground the judge appends a note, stаting that in -his charge he instructed the jury not to consider ihé evidence, as it did not bear upon any matеrial issue in the case. These instructions of the judge were, in effect, a ruling out of the -evidencе; and therefore the admission of the evidence in the first instance affords no reason for reversing the judgment.
Complaint is made that the court сharged the jury that the burden was-on the plaintiff to сonvince them of the truthfulness of his contentions, by а preponderance of evidence. The burden rested upon the plaintiff to show that he was the owner of the mules at the time the suit was filed. The defense was that he had sold the mules to thе defendants. The complaint is that the charge •compelled the plaintiff to establish a negative, — that is, that he did not sell’ the mules. The plaintiff, at the- outset of his case, had imposed upon him the burden of establishing ownership; and this burden rested upon him throughout the trial. -It might, in such a case, after a prima facie case of ownership hаd been made -out by the plaintiff, become necessary for him, in reply to the de*580fense, to show that he did not sell; but the burden to show ownership, which wаs an affirmative fact, was upon him at all times; аnd there was no error in the charge as aрplied to the facts.
In one ground of the motiоn it was alleged, that the court erred in a specified portion of the charge, which is quoted. There is no other assignment of error than that contained in the averment that the‘court errеd. It is well settled that when an assignment of this-kind is offered, the only question for decision is whether the proрosition stated in the extract from the chargе is correct as abstract law.. No inquiry will be made as to whether the law thus charged is appliсable to the case. Applying this rule, the extract was sound, law. If the movant desired, to take еxception to it on the ground that it was inapplicable, there should have been an assignment of error to that effect.
Complaint is madе that the court erred in failing to charge upon what is essential to make or constitute a сonditional sale. There was no evidencе authorizing instructions iipon this subject.
The evidence authorized the verdict, and no sufficient reason has been shown for reversing the judgment.
Judgment affirmed.
All the Justices concur, except Fish, G. J.r absent.