Dorough v. Johnson

• Decision Date: 01 August 1899
• Citation: 34 S.E. 168,108 Ga. 812
• Parties: DOROUGH. v. JOHNSON.
• Court: Georgia Supreme Court

34 S.E. 168

108 Ga. 812

DOROUGH.

v.JOHNSON.

Supreme Court of Georgia.

Aug. 1, 1899.

TRIAL—RIGHT TO OPEN AND CLOSE—APPEAL —REVIEW.

1. The defendant below was not entitled to open and conclude, because he did not, by admissions in his answer, make out a prima facie case for the plaintiff, and thus relieve him from the necessity of introducing evidence. Admissions made by a defendant for the purpose of gaining this advantage must be in his pleadings, and not merely oral. Montgomery v. Hunt, 21 S. E. 59, 93 Ga. 438; Levens v. Smith, 31 S. E. 104. 102 Ga. 480; Association v. Perry, 30 S. E. 658, 103 Ga. 800. In the case last cited, the admission referred to was embraced in the an swer of the defendants, though this fact does not appear in the official report.

2. At the October term, 1896, it was in this case decided that the defendant's answer, as it then stood, was meritorious, and ought not to have been stricken. See 27 S. E. 187, 99 Ga. 644. Upon the trial now under review, for some reason not disclosed, all of his pleas, except one setting up failure of consideration, were withdrawn; and as much evidence totally irrelevant to the only issue thus left in controversy was improperly allowed to go to the jury, and as the court gave in charge to them numerous inappropriate instructions, there should be another hearing.

(Syllabus by the Court.)

Error from superior court, Harris county; W. B. Butt, Judge.

Action between J. T. Dorough and Henry Johnson. From the judgment, J. T. Dorough brings error. Reversed.

C. J. Thornton and A. E. Thornton, for plaintiff in error.

B. H. Walton and Brannon, Hatcher & Martin, for defendant in error.

PER CURIAM. Judgment reversed.