Ark. Code Ann. § 16-40-101 (2020)

Research References

Ark. L. Rev.

Evidence — Civil Procedure — Burden of Proof on Issue of Statute of Limitations, 4 Ark. L. Rev. 484.

Judicial Regulation of Procedure, 9 Ark. L. Rev. 146.

Case Notes

Conveyance.

In a suit to set aside an absolute conveyance, plaintiff claiming that it was the conveyance of his equity of redemption under a mortgage previously executed, a prima facie case is made by showing that it was an extinguishment of such equity, then the burden shifts to defendant to show that such a conveyance was free from fraud, oppression or undue influence. Green v. Gilbert, 169 Ark. 537, 276 S.W. 8 (1925).

Deceit.

In a suit for deceit brought to recover money alleged to have been secured by fraud the burden of proof is on the plaintiff as he is “the party who would be defeated if no evidence were given on either side.” Looney v. Potts, 163 Ark. 310, 260 S.W. 23 (1924).

Election Contest.

Even though the proof connected the contestees with the spoilation of the poll books, this would not have relieved the contestants of the burden of proving the allegations of their petition that the election returns were fraudulent and void. Webb v. Bowden, 124 Ark. 244, 187 S.W. 461 (1916).

Foreclosure.

Where the plaintiffs bring an action in chancery to restrain the foreclosure of a mortgage executed by their deceased parents, which mortgage is barred on its face by the statute of limitations, the burden is upon the plaintiffs to allege and prove facts sufficient to justify the court in granting the relief prayed. Culberhouse v. Hawthorne, 107 Ark. 462, 156 S.W. 421 (1913).

Where a trial court heard the testimony of two conflicting expert opinions and decided that both experts were credible, it did not err when it placed the burden of proof upon contractors to show that their improvements increased the value of a property that had gone into foreclosure. Del Mack Constr., Inc. v. Owens, 82 Ark. App. 415, 118 S.W.3d 581 (2003).

Insanity.

In a suit to cancel a deed and a mortgage on the ground of insanity, where the prima facie case made by showing that the plaintiff had been adjudged insane was overcome by the agreed statement of facts, the burden was on plaintiff to show insanity. Field v. Koonce, 178 Ark. 862, 12 S.W.2d 772, 68 A.L.R. 1303 (1929).

Insurance.

Where a life insurance policy made payable to a bank as its interest may appear is, on the death of the insured, paid to the bank, an action brought by the deceased's administrator to recover on the policy alleging that deceased owed nothing at the time of his death and that payment to the bank was made in bad faith placed the burden on the administrator to prove these allegations by a preponderance of the evidence. Shelby v. Union Life Ins. Co., 177 Ark. 737, 7 S.W.2d 778 (1928).

Notes.

Where defendants, to whom widow had advanced money to pay note of her deceased husband under an agreement that they would probate and assign the claim to her, failed to do so, though admitting the agreement, the burden was on defendants. Pearson v. Humphreys, 170 Ark. 827, 281 S.W. 388 (1926).

In an action on a note given for corporate stock, where the defense is that the stock was sold in violation of the Blue Sky Law, the defendant has the burden of proof, entitling him to open and close the the argument. Kempner v. Stephens, 186 Ark. 877, 56 S.W.2d 580 (1933).

In action on foreign judgment on a note defended on ground note was a forgery, refusal to permit defendant's counsel to open and close the argument to the jury was proper, since plaintiff had burden to prove genuineness of note, execution of which had been denied under oath; defendant had burden to prove affirmative plea that note was a forgery, but the burden on the whole was on plaintiff. Motsinger v. Walker, 205 Ark. 236, 168 S.W.2d 385 (1943).

Personal Injury.

In an action for damages for personal injuries, the burden is upon the plaintiff to show the fact of the injury by the operation of the causative factor and the damages resulting therefrom. Huckaby v. St. Louis, Iron Mountain & S. Ry., 119 Ark. 179, 177 S.W. 923 (1915).

Statute of Limitations.

Whenever the bar of the statute of limitations does not appear from the pleadings and evidence on behalf of the plaintiff, the burden of proof is upon the defendant, who pleads the statute as a defense, to establish its application to bring him within its terms. Alston v. Bitely, 252 Ark. 79, 477 S.W.2d 446 (1972).

Warranty.

It is necessary for the buyer of a chattel to allege and prove, as a condition precedent to his right to recover on a warranty in the contract of sale, that he has complied with his part of the contract which was contained in the same writing with the warranty. Williams v. Newkirk, 121 Ark. 439, 181 S.W. 304 (1915).

Will.

That will contestants had good theory to prove invalidity of the will was not sufficient since they had burden to establish facts that would support that theory. Chauvin v. Johnson, 193 Ark. 600, 101 S.W.2d 432 (1937).

Cited: Johnson v. Mitchell, 164 Ark. 1, 260 S.W. 710 (1924); Turner v. Rust, 228 Ark. 528, 309 S.W.2d 731 (1958); Vern Barnett Constr. Co. v. J.A. Hadley Constr. Co., 254 Ark. 866, 496 S.W.2d 446 (1973).