Opinion
No. 12,102.
Decided June 3, 1929.
Action to recover possession of jewelry. Judgment for defendant.
Affirmed.
1. APPEAL AND ERROR — Sufficiency of Evidence. Fact findings and judgment of the trial court based on conflicting evidence will not be disturbed on review where they are supported by sufficient evidence.
2. TRIAL — Replevin — Burden of Proof. In an action to recover possession of jewelry, defendant's claim that it was a gift to her, held not an affirmative defense, but an allegation negativing plaintiff's claim of ownership, and the burden of proof was properly placed on plaintiff.
Error to the District Court of the City and County of Denver, Hon. Robert G. Smith, Judge.
Mr. CHARLES E. FRIEND, for plaintiff in error.
Mr. EMMETT THURMON, for defendant in error.
SARAH K. McAlpine sued her former daughter-in-law, Alma M. McAlpine, to recover several articles of jewelry. The case was tried to the court without a jury. The findings and judgment were for the defendant.
1. The evidence was conflicting. There was evidence sufficient to support the findings and judgment; hence, even if we disagreed with the trial court in the conclusions reached — and we do not — we could not set aside the findings and judgment and substitute our own.
2. Complaint is made that the court placed the burden of proof upon the plaintiff instead of upon the defendant. The burden was placed where it belongs. The defendant's claim that the jewelry was given by the plaintiff to her son, and by the son to the defendant as a wedding present, is not an affirmative defense, but negatives the plaintiff's claim that she owned the jewelry at the time the suit was brought.
3. It is unnecessary to discuss the several assignments based upon the admission of evidence. It is sufficient to say that they are without merit.
The case was fairly tried. The judgment is right. It should be, and it is, affirmed.
MR. CHIEF JUSTICE WHITFORD, MR. JUSTICE MOORE and MR. JUSTICE BURKE concur.