Buchanan v. Mcdonald
| Decision Date | 31 December 1869 |
| Citation | 40 Ga. 287 |
| Parties | JAMES BUCHANAN, plaintiff in error. v. JAMES G. W. McDONALD, defendant in error. |
| Court | Georgia Supreme Court |
Order of Argument. Rule against Sheriff. Before Judge Parrott. Murray Superior Court. October Term, 1869.
*Buchanan was sheriff, and McDonald his deputy. McDonald went out of office, and Buchanan, in April, 1869, obtained against him a rule nisi, requiring him to show cause why he should not pay into Court the amounts called for by divers cost fi. fas., in favor of the officers of the Court, which McDonald had had for collection, while he was in office. McDonald answered that he had not levied the fi. fas., because Buchanan had told him not to do so, etc. This answer was traversed, and upon the trial of the issue there was evidence introduced by Buchanan against said answer, and by McDonald in support of it. Buchanan's counsel began to argue the cause before the jury, when McDonald's counsel objected, contending that he had the right to begin and conclude the argument. The objection was sustained by the Court, and McDonald's counsel began and concluded the argument. The jury found for McDonald. A new trial was moved for, upon the grounds that the verdict was contrary to law and decidedly against the weight of the evidence, and that the Court erred in sustaining said objection. The new trial was refused, and of that complaint is made here.
R. J. McCamy, for plaintiff in error, as to the order of argument, relied upon: 9th Ga. R., 206, 363; 24th, 211; 25th, 286; 38th, 235; 32d, 111; 34th, 346, and sec. 3705, Irwin's Code.
J. A. W. Johnson, for defendant, relied upon 55th C. L. Rule. (Old Rules.)
We are clear that the Court erred in holding that the sheriff had the right to open and conclude the argument, in this case. True, he was called upon to show cause, and ifthe question for argument was upon the rule and answer, under (new) rule 45, of the Superior Courts, the right to open and conclude would be his. But this is an issue formed upon his answer. He answers, under oath, as an officer of Court. It stands upon the footing of a return. Prima facie it was to *be taken for true. The plaintiff undertook to controvert it, to show that it was untrue, and the burden of proof was upon him. It was at his demand that the case was for trial, and it was upon him to show that the sheriff\'s answer was untrue. Code, section 3878.
This Court has decided in several cases, that the right to open and...
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TGM Ashley Lakes, Inc. v. Jennings, No. A03A1401.
...directing his attention to it, and arraying everything in the case, that fairly illustrates and sustains his view of it. Buchanan v. McDonald, 40 Ga. at 287, 288 (1869). It is undisputed that neither the verdict establishing liability nor the amount of damages awarded in the present case wa......
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Fite v. Hooks
...to the case, very often to choose the ground on which the battle shall be fought," and may possibly afford other advantages. Buchanan v. McDonald, 40 Ga. 287. 2. the trial before a jury of an action for damages for the willful cutting of timber, in which the defendant introduced no evidence......
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Fite v. Hooks
...to the case, very often to choose the ground on which the battle shall be fought, " and may possibly afford other advantages. Buchanan v. McDonald, 40 Ga. 287. 2. In the trial before a jury of an action for damages for the willful cutting of timber, in which the defendant introduced no evid......