
    Ashael Cleveland, Appellant, v. H. L. Crum, Respondent.
    Kansas City Court of Appeals,
    February 4, 1889.
    1. Landlord and Tenant: attachment for rent ; plea in abatement : burden of proof. In an attachment for rent under the landlord and tenant act, the procedure should conform to the provision of the general attachment law ( R. S. sec. 3092); and if the defendant pleads in abatement, such plea puts in issue the facts alleged in the affidavit for the attachment (sec. 438); and the plaintiff shall be held to prove the existence of the facts alleged by him as the ground for attachment ( sec. 439 ); and the trial court properly instructed the jury that the burden of proof is on the plaintiff, and unless the issue be proven in his favor by a preponderance of evidence, they should find for the defendant," and, where the allegation in plaintiff’s affidavit is, that rent is past due and unpaid, it is not error to refuse an instruction casting the burden of proving payment upon the defendant.
    2. -:-: weight of evidence. The burden of proof and the weight of evidence are quite different and the opinion distinguishes them.
    3. Practice: question for jury. Where there is conflicting evidence and a jury might find either way, their finding should not be disturbed.
    
      Appeal from the Henry Circuit Court. — Hon. D. A. DeArmond, Judge.
    Affirmed.
    
      A. Haynie and HyJce, Calmrd & Lewis,' for appellant.
    (1) It being admitted tliat defendant was plaintiff ’s tenant, the burden was on defendant to show that the rent had been paid. Tarnell v. Williams, 14 Mo. 619. The only issue which could possibly arise as to rent of 1885 was as to payment of the rent. Upon that issue the burden was on defendant. Basan v. Dillaye, 8 How. Pr. 273; Fullerton v. Banlc, 1 Pet. 604-617. Especially in view of the fact that it was not claimed that the rent had been paid in money, but that defendant had a counter-claim or offset sufficient to overbalance the rent. That matter could be investigated only on a trial of the merits of the case and not upon a plea in abatement. Plaintiff’s instruction number five should, therefore, have been given, and defendant’s instruction number three should have been refused. (2) Plaintiff’s motion for a new trial should have been sustained, because there was no evidence whatever that the rent had been paid.
    
      McBeth & LaDue, for respondent.
    (1) It is not admitted by the pleadings that respondent was the tenant of appellant. The plea in abatement is a general denial of all the alleged grounds of attachment. The burden of proving payment of the rent for 1885 was not on defendant. The definition given by the courts of burden of proof is, “the obligation imposed upon a party who alleges the existence of a fact or thing, necessary in the prosecution or defense of an action, to establish it by proof.” People r>. McCann, 16 N. Y. 66 ; Ex parte Walls, 64 Ind. 461; Wilder r. Cowles, 100 Mass. 487; Barnham v. Allen, 1 Gray (Mass.) 500. The strict meaning of the term onios probandi is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. Dams i>. Rogers, 1 Houst. (Del.) 95; Prevost v. Gratz, 6 Wheat. (U. S.) 481; Oostigan r. Railroad, 2 Denio (N. Y.) 600; Pousey v. Shoolc, 3 Black. (Ind.) 267 ; 25 Am. Dec. 108.
   Smith, P. J.

Action by attachment to recover rent. The truth of the facts alleged in the affidavit for the attachment was put in issue by a plea in abatement. There was a trial on this issue which resulted in a finding for the defendant, and judgment was accordingly rendered, abating the attachment, from which plaintiff has prosecuted his appeal to this court.

The principal question arising in the record for our decision is whether the circuit court properly directed the jury as to the burden of proof. The complaint here is that the circuit court erred in its refusal to give the plaintiff’s third instruction, which told the jury that.if the defendant occupied the plaintiff’s farm as a tenant for the year 1885 and that the rent for that year, or any part of it, was due and unpaid, they should find for the plaintiff, and that it was necessary only for the plaintiff to prove, in order to sustain the attachment, that defendant did occupy said farm for said year; that at the time this suit was brought the rent for said year or some part thereof was past due and unpaid, and that the burden of proving such payment was on defendant, and also that it was error to have given the defendant’s third instruction, which declared to the jury that the burden of proof was on the plaintiff, and unless the issne be proven in his favor by a preponderance of testimony they should find for defendant.

Proceedings on an attachment issued under the statute “ Of Landlord and Tenant” are required to conform to the provisions of the general attachment law (R. S. sec. 3092), which provides that the plea in abatement puts in issue the truth of the facts alleged in the affidavit for the attachment. Sec. 438. It further provides that upon such issue the plaintiff shall be held to prove the existence of the facts alleged by him as the ground of attachment (sec. 439), which in this case were .that the “rent for'the year 1885 was past due and unpaid.” Sec. 3091.

The statute in cases of this kind plainly fixes the onus probandi. The plea in abatement simply puts in issue the truth of the facts alleged in the affidavit above indicated. It can perform no office other than that; under it no defense can be made which would relieve the plaintiff of the burden of proving the truth of the grounds alleged in the affidavit for the attachment.

An admission of the prima-facie case and an allegation of affirmative matter of avoidance places the burden of proof on defendant. Murphy v. Murphy, 15 Mo. 600.

The burden of proof and the weight of evidence are quite different. The former remains on the party affirming a fact in support of his case, and does not change in any way the aspect of the case. The latter shifts from side to side in the progress of the trial according to the nature and strength of the proof offered in support or denial of the main fact to be established. Bridge Corp. v. Butler, 2 Gray, 132. And when the plaintiff and defendant have both put in evidence, the burden of proving the plaintiff ’ s whole case by a preponderance of evidence is in the party who had the burden of proof in the beginning of the trial. Pavus v. Russell, 13 Pick. 76. It was necessary for the plaintiff to prove that the rent was past due and unpaid. This was the distinctive ground for the attachment, and for that very reason it was necessary for plaintiff to prove it. The burden was cast upon him under the statute referred to.

We have looked at the cases cited by plaintiff and do not find that they in any way sustain his contention, they having no application to cases of this kind.

It is needless to repeat here what has in effect already been said, namely, that the statute of this state in cases of this kind lays the burden of proof upon the plaintiff, where it remains through the entire trial of the case.

The plaintiff further contends that the motion for a hew trial should have been sustained by the court below because there was no evidence before the jury that the rent had been paid.

There was conflicting evidence upon this point and the jury might possibly have found that the rent was or was not due and unpaid. There, was some evidence that countervailed that offered by the plaintiff in support of the affirmative of the issue. It may be that the jury found that the evidence to support the plaintiff’s allegation that the rent was past due and unpaid was not satisfactory or sufficient to convince their mind of its truth, and for that reason their verdict was for defendant.

Perceiving no error in the record prejudicial to plaintiff, the other judges concurring, the judgment of the circuit court is affirmed.  