Brown v. Kirkpatrick
| Decision Date | 20 April 1874 |
| Citation | 5 S.C. 267 |
| Parties | BROWN v. KIRKPATRICK. |
| Court | South Carolina Supreme Court |
Where the answer admits the allegations of the complaint and pleads a counter claim, and the reply alleges special circumstances negativing the allegations of the counter claim, defendant is entitled, at the trial, to open and close the case.
The question, as to who is entitled to the opening and closing of the case, under Rule 69 of the Circuit Court, must be determined wholly on the pleadings as they stand at the commencement of the trial.
Error in allowing the plaintiff to open and close is ground for new trial.
BEFORE GRAHAM, J., AT CHARLESTON, DECEMBER TERM, 1873.
Action upon a money demand. When the case came on for trial defendants moved that they be allowed to open and reply. The motion was denied and defendants excepted.
The verdict was for the plaintiff, and defendants appealed.
Memminger , for appellants.
Harllee , contra.
Rule 69 of the Circuit Court Rules allows the defendant to have the opening and closing of the case " when he admits the plaintiff's case and takes upon himself the burthen of proof." In the present case the defendants admitted the matters stated in the complaint, and relied wholly on matters set forth by way of counter claim. This would appear to the very case contemplated by the rule. It is contended, however that inasmuch as the facts stated, by way of counter claim, were such as to demand proof from the plaintiff, in order to controvert the same, that the defendant is not entitled to the benefit of the rule.
The question as to who was entitled to the opening and closing of the case must be determined wholly on the pleadings as they stood at the commencement of the trial. Then it was that the error was committed, if committed at all, and the ruling of the Circuit Judge must be tested by them alone. The facts subsequently developed cannot be permitted to influence the question.
It is clear that the rule as to opening and closing should be plain and simple in its application. It ought not to be encumbered with nice considerations growing out of the character of the evidence necessary to be adduced, nor on speculative views of the course of proof likely to be pursued by the respective parties. In other words, it is to be determined by the nature of the issues, rather than by the character of the evidence called for in their support by the respective parties.
What then, was the nature of the issues involved in the present case? The complaint is upon a money demand for the proceeds of the sale of certain goods, sold by the defendants for the account of the plaintiffs upon commission. Every fact and circumstance alleged by the complaint is admitted. The defendants, by way of counter...
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