Fite v. Hooks

• Decision Date: 17 November 1925
• Docket Number: 16620.
• Citation: 130 S.E. 692,34 Ga.App. 629
• Parties: FITE v. HOOKS.
• Court: Georgia Court of Appeals

130 S.E. 692

34 Ga.App. 629

FITE v. HOOKS.

No. 16620.

Court of Appeals of Georgia, Second Division

November 17, 1925

Syllabus by Editorial Staff.

When defendant introduces no evidence, he is entitled to open and close argument.

Where defendant who introduced no evidence was denied right to open and close argument, error was not cured by statement of plaintiff's attorneys during final argument that defendant's attorney might conclude argument; court acquiescing therein but defendant's attorney declining.

In action for damages for wrongful cutting of timber, in which defendant introduced no evidence, where evidence did not demand verdict for amount found for plaintiff, error in denying defendant's request to open and close argument held to require new trial.

Error from City Court of Americus; W. M. Harper, Judge.

Action by Henry Hooks against J. B. Fite. Judgment for plaintiff and defendant brings error. Reversed.

R. L Maynard, of Americus, for plaintiff in error.

W. T. Lane & Son, of Americus, for defendant in error.

Syllabus OPINION.

BELL J.

1. When a defendant in a civil case introduces no evidence, he is entitled not merely to the conclusion of the argument but to the opening and conclusion. Moore v. Carey, 116 Ga. 28 (5), 42 S.E. 258. Even "the right to open is important. It enables the party to give direction 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 evidence, he was entitled to the opening and conclusion of the argument, and having requested the same before the argument began, the court erred in denying the request. The error was not cured by the fact that both the attorneys for the plaintiff, during the final argument on the plaintiff's side, stated in open court that they were willing for the defendant's attorney to conclude the argument after the attorney for the plaintiff, who was then addressing the jury, had finished, in which statement the court acquiesced; the defendant's attorney declining the offer.

3. Since the evidence did not demand the verdict for the amount found in the plaintiff's favor, the error referred to requires a new trial. Willett Seed Co. v Kirkeby-Gundestrup Seed Co., 145 Ga. 559 (5), 89 S.E. 486. No other...