Given, J.
i. evidence: court flies. I. The appellant assigns as errors a number of rulings admitting and excluding testimony, all °f which we have examined, and fail any prejTidioial error in the rulings. A paper purporting to be an execution in the case of Benjamin v. Davis was properly excluded, as it did not bear the clerk’s seal or filing mark, and was not otherwise identified than by being found with the papers in that case.
2’ meutf^ffleer’s II. The appearance docket showed in the same case, “ Writ of attachment returned, and duly served.” The words, “ duly served,” were properly excluded, as section 3010 of the Code requires that the fact constituting the service shall be stated in the return. Aultman v. McGrady, 58 Iowa, 118.
2. _: title to land. III. Davis’ ownership of the land attached was in issue, and called for the best evidence; hence, there was no error in excluding Davis’ testimony as to his ownership. It is said that other land than that under notice was attached, and that this testimony w“as to show that he did not own the other land. As neither party was claiming anything in respect to the other land, the inquiry was imma[395]*395terial. Other errors assigned upon the admission and exclusion of testimony do not require special mention.
4. _:_: burden of proof: appeal. IV. Question is made as to which party had the burden of proving that Davis had an attachable interest in the land at the time of the levy. The appellant contends that when he showed x -1-the indebtedness of Davis, the issuing, levy and return of the attachment, and neglect of the appellee by which the lien was lost, he was prima facie entitled to recover the full "amount of Davis’ indebtedness, unless the appellee showed that the land, or Davis’ interest therein, was less valuable, or that he had no interest in the land. There is some conflict in the authorities upon this subject, yet the weight of authorities in this country seems to sustain the rule contended for. 2 Sedgwick on Damages, 449; Sloan v. Case, 25 Am. Dec. 569, and notes; Ledyard v. Jones, 7 N. Y. 550; Harris v. Kirkpatrick, 35 N. J. Law, 392. The appellee, without questioning the rule claimed by the appellant, maintains that, as the appellant alleged, and throughout the trial assumed the burden of proving, that Davis owned the land at the time of the levy, he must continue to carry that burden. The appellant did allege that Davis owned the land, and, this being denied, offered testimony for the purpose of showing tb at fact, which, as we have seen, was properly excluded. Some twenty days after the case was fully submitted and taken under advisement the appellant moved to set aside the submission, and for leave to introduce further testimony as to Davis’ title, on the ground that it had been omitted through mistake and oversight, which motion, being overruled, the appellant excepted. It is manifest that, throughout the entire trial, the appellant assumed the burden of proving that Davis had an attachable interest in the land, and it was at no time claimed that the burden of so proving was not on the appellant. "Whether the rule be as contended by the [396]*396appellant we do not determine. It would be unjust to permit the appellant to now, for the first time, assert the rule. It would not only be a surprise to which the appellee should not be subjected, but would deprive him of the benefit of testimony which he might have otherwise introduced. The appellant, having thus assumed the burden of proving Davis’ ownership, must be held to carry it on this appeal. Musser v. Maynard, 55 Iowa, 197; Denton v. Chicago, R. I. & P. Ry. Co., 52 Iowa, 161. The testimony offered being excluded, there was no evidence whatever that Davis had any interest in the land. True, the deed from Davis to Miller is in evidence, but, without showing title in Davis, it proves no ownership in him. Wearin v. Munson, 62 Iowa, 466; Heinrichs v. Terrell, 65 Iowa, 25. Having assumed, as he did, the burden, it was upon the appellant to show that Davis had an attachable interest in the land at the time the levy was made, which he has entirely failed to do. As for this reason the judgment of the district court must be affirmed, we do not consider the question whether the appellant’s failure to protest the notes defeats his right to recover. Aeeirmed.
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