#### Mansur & Tebbetts Implement Co. v. Davis.

Opinion delivered February 8, 1896.

Trial — Attachment—Opening and Conclusion oe Argument.— Where, on the trial of an intervention in an attachment suit, the . plaintiff admits the sale and delivery of possession of the attached property to the intervener before the attachment, but alleges that such sale Was fraudulent, the burden of proof is,on plaintiff, and he is entitled to open and conclude the argument.

Appeal from Miller Circuit Court.

Rueus D. Hearn, Judge.

W. H. Arnold, for appellant.

' The court erred in refusing plaintiff the right to open and conclude the argument. When a party assumes the burden of proof, he is entitled to open and conclude the argument. 58 Ark. 446; 32 id. 593; 29 id. 151; 59 id. 143.

7. E. Webber, for appellee.

The burden remained on the interpleader to make out,his case. 58 Ark. 446; 29 id. 270; 27 id. 504; 45 id. 492; 53 id. 96 ; 58 id. 564; 55 id. 59. But, if error, it was harmless. The right to open and conclude is of value only when the party applying for it has testimony to argue. Here they have nothing but inferences, suspicions and illogical conclusions, not based on the testimony. The showing made by appellee was complete and convincing, and, in the absence of proof to destroy it, no order of argument could disturb it.

PER Curiam.

This was an attachment by the Mansur & Tebbetts Implement Company against Robert Filis, in the Miller circuit court, on the ground that he had disposed of his property with the fraudulent intent to cheat, hinder and delay his creditors. N. B. Davis, *628the appellee, interpleaded, claiming the goods by purchase from the defendant. Defendant, Ellis, filed an affidavit controverting the affidavit for attachment; and, on the trial of this issue, judgment was for plaintiff for its debt, and the attachment was sustained.

Thereupon, plaintiff filed an answer to the interplea, admitting the sale by defendant to interpleader, and the delivery to him of the possession of the goods sold, as alleged in the interplea, previous to the issuance of the writ of attachment, and that the property was so in the possession of the interpleader when the writ of attachment was served by the sheriff, but alleged that, at the time of said sale by defendant, Ellis, to interpleader, Davis, the defendant was largely indebted, and was, in fact., insolvent, and that said sale and transfer was without consideration, and for the purpose of cheating and defrauding the defendant’s creditors, and of hindering and delaying them in the collection of their debts.

Before the introduction of testimony, plaintiff asked to assume the burden of proof, and this was refused; and after the evidence was all in, and the instructions settled, plaintiff moved the court that, as it had admitted the sale to, and possession of, the interpleader, and thus made a frima facie case for him, and as the remaining issue was as to the dona fides of said sale, as to which issue the burden was on it, to permit it to open and conclude the argument. This motion was overruled, and plaintiff reserved exceptions.

Section 2927, Sandels & Hill’s Digest, reads thus: “The party holding the affirmative of an issue must produce the evidence to prove it.” Section 2928 : “ The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side.” The 3rd sub-division of section 5820, Sandels & Hill’s Digest, reads thus: “Third. The party on whom rests the burden of proof in the whole action *629must first produce his evidence. The adverse party will then produce his evidence.” The 6th sub-division of the same section reads thus: “Sixth. The parties may then submit or argue the case to the jury. In the argument the party having the burden of proof shall have the opening and conclusion; and if, upon demand of his adversary, he shall refuse to open and fully state the grounds upon which he claims a verdict, he shall be refused the conclusion.”

The majority of the court are of the opinion, that upon the state of case here made by the pleadings, the motion of plaintiff should have been sustained, and that, in overruling the same, the court erred, and that the error is such that the judgment must be reversed. Railway Co. v. Taylor, 57 Ark. 137; Tobin v. Jenkins, 29 Ark. 151.

In other respects this cauese is on a footing with the cases of Hargadine-McKittrick Dry Goods Co. against N. L. Davis, Interpleader (No. 2811), and Stern, Lauer, Shohl & Co. against N. L. Davis, Interpleader, (No. 2881), determined to-day,* and would be affirmed except for the error mentioned.

Reversed, and remanded for further proceedings not inconsistent with this opinion.

*

Orally decided.