Willis v. Smith

42 P. 990, 28 Or. 581, 1895 Ore. LEXIS 131

Opinion

Opinion by

Mr. Chief Justice Bean.

This is a proceeding by garnishment. The pleadings are identical with those in the case of P. L«, Willis against, the same defendants, 28 Or. 265, except as to the date of the garnishment, and the date and amount of plaintiff’s judgment against Holmes. It appears from the record that after a jury had been impanelled to try the cause and both parties had declined to give any evidence, the defendant moved for a nonsuit, and plaintiff for a judgment on the pleadings. Plaintiff’s motion was overruled, and the motion for nonsuit allowed, on the theory that the burden of proof was on the plaintiff. For the reasons given in the opinion just filed in the P. L. Willis case, 28 Or. 265, we think the motion for judgment on the pleadings was properly overruled, but the court erred in holding that the burden of proof was on the plaintiff and in granting a nonsuit. Reversed.