
    Hawkins Lumber Co. v. Bray.
    
      Action of Trover.
    
    1. Action of trover; burden of proof; — In an action of trover, the burden is upon the plaintiff to show that the alleged conversion occurred before the institution of the suit; and this burden of proof is not discharged where the only evidence as to the time of the conversion is a statement in an agreed statement of facts, that the defendant had moved and used a part of the property alleged to have been converted between two dates which included a time before the institution of the suit and a time thereafter, without any additional evidence showing that the alleged conversion occurred prior to the commencement of the suit.
    Appeal from the City Court of Birmingham.
    Tried before the Hon. W. W. Wilkkrson.
    The appeal in this case is taken by the Hawkins Lumber Company, who were plaintiffs in the court below, in a suit against John W. Bray from a judgment rendered in behalf of the defendant; and the rendition of this judgment is the only error assigned. The facts of the case are sufficiently stated in the opinion.
    John H. Miller and F. C. Blackburn, for appellant.
    Bowman & Harsh, contra.
    
   McCLELLAN, J.

This is an action of trover prosecuted by the Hawkins Lumber Company against Bray for the alleged conversion of lumber constituting part of a certain bridge. The onus was, of course, on the plaintiff to reasonably satisfy the court by a preponderance of the evidence that the lumber belonged to it and that the defendant before suit brought converted the same to his own use. The trial was had without jury on an agreed statement of facts. The suit was instituted on June 27, 1893. The agreement as to the facts was entered into on July 5, 1893. The only evidence adduced as to the time of the conversion by the defendant is this paragraph in said statement of facts : “Ermann & Merritt sold to John W. Bray the bridge or lumber sued for in this action on the 17th day of May, 1893, and the said Bray has moved and used about twenty thousand feet of said bridge and lumber.” Whether the conversion thus shown occurred before June 27th, when the action was instituted, or.between that date and July 5th, when the statement was agreed upon, the court below ■ was left entirely to conjecture. The statement covered all the time elapsing between May 17th. and July 5th., and referred as well to a conversion upon a day within that period subsequent to June 27th as to a day prior to that date. The burden resting upon plaintiff was not discharged. It was not affirmatively shown to the reasonable satisfaction of the court that the alleged conversion was before suit brought. The case for plaintiff was not made out. And the city court correctly found for the defendant.

Affirmed.  