Barnett v. Gottlieb
| Decision Date | 16 July 1914 |
| Docket Number | 8877. |
| Parties | BARNETT v. GOTTLIEB. |
| Court | South Carolina Supreme Court |
Appeal from General Sessions Circuit Court of Marion County; N. F Rice, Judge.
Action by Nathan Barnett against Samuel L. Gottlieb. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.
Nathan Barnett, of St. Stephens, for appellant.
Hoyt McMillan, of Mullins, for respondent.
This was an action for damages for an assault and battery. The defendant was arrested and held for bail under section 238 of Code Civ. Proc. 1912. He furnished bail, and the cause was tried at the April term of the court, 1913, before Judge Rice and a jury. The defendant did not appear in person, but was represented by counsel. The sureties on the defendant's bond were also represented by counsel. The jury returned a verdict in favor of the defendant. A motion for new trial was made and refused. Defendant appeals, and by five exceptions asks reversal.
The third exception imputes error on the part of his honor in permitting counsel for defendant to reply to the argument of plaintiff to the jury, giving counsel for defendant the opening and closing argument to the jury. Under rule 59 of the circuit court, under the pleading in this case the plaintiff was entitled to open and close the argument in the cause. It is true that the record fails to disclose that the plaintiff claimed his rights, but it was the duty of the court to enforce the rules, and the burden is on the respondent to show waiver of this privilege on the part of the appellant and no attempt is made to do this.
During the examination of witnesses, the court permitted both Mr. Johnson, who represented the sureties on the defendant's bond, and Mr. McMillan, who represented the defendant, to examine the witnesses, and the plaintiff protested, and we find the following:
It was clearly within the right of the judge to dispense the requirements of rule 31 of circuit court, which provides that only one counsel on each side shall examine or cross-examine a witness, and not more than one side shall sum up or be heard in any cause, but it was his duty to enforce the rule as to the plaintiff's right to open and close, and, when his honor told the plaintiff his objections were getting tiresome to the court, it was calculated to deter the plaintiff from further renewing his objections along this line, and while his honor had the right to exercise a discretion in reference to rule 31 of the circuit court, he had no right to suspend or...
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