§ 9-13-102.Burden of proof

In a claim trial, someone has to go first with proof, and this short section decides who. It answers that question by looking at one fact: where the property sat at the moment of the levy.

The statute’s express rule covers the case where the property levied on was not in the defendant’s possession when the levy happened — say, it sat with the claimant, or with some other third person. In that situation, the burden of proof lies on the plaintiff in execution, who must affirmatively show the property is subject to the execution despite not being in the defendant’s hands.

The reverse situation is the necessary flip side of that same rule. When the property was in the defendant’s possession at the time of the levy, the law does not require the plaintiff to prove anything further at the outset — possession by the defendant carries its own weight, and it falls to the claimant to prove a right to the property superior to the defendant’s apparent ownership. This section governs only the burden on the underlying right-of-property question; whether a claim was interposed for delay only under Code Section 9-13-101 is a separate issue the plaintiff must establish regardless of who carries the burden on title.