Huston v. Green
| Decision Date | 04 May 1926 |
| Citation | 91 Fla. 434,108 So. 846 |
| Parties | HUSTON v. GREEN. |
| Court | Florida Supreme Court |
Error to Circuit Court, Pinellas County; M. A. McMullen, Judge.
On petition for rehearing. Rehearing denied.
For former opinion, see 107 So. 368.
Syllabus by the Court
In the absence of a statute or rule upon the subject where the plaintiff has anything to prove in order to get a verdict whether in an action ex contractu or ex delicto, and whether to establish his right of action or to fix the amount of his damages, the right to begin and conclude the argument to the jury belongs to the plaintiff.
Where there are several issues, and the plaintiff has anything to prove under any one of them in the first instance, in order to recover, thr right to open and close the argument is with him.
In every case where general issue or where general or special denial is pleaded, right to open and close is with plaintiff. In every case where the general issue or a general or special denial is pleaded, the right to open and close is with the plaintiff, for then he has something to prove in the first instance, no matter what may be the nature of the controversy, or what special defenses may be set up.
Appellate court will not reverse order granting new trial, unless it clearly appears that judicial discretion has been abused resulting in injustice, or that law has been violated. There are so many matters occurring in the course and progress of a judicial trial that, in the opinion of the judge who tried the case, may affect the merits and justice of the cause to the substantial injury of one of the parties that of necessity a large discretion should be accorded to the trial court in granting a new trial, to the end that the administration of justice may be facilitated; and the appellate court will not reverse an order granting a new trial, unless it clearly appears that a judicial discretion has been abused in its exercise, resulting in injustice, or that the law has been violated.
Wm. G. King, Geo. P. Stovall, and J. Frank Houghton, all of St. Petersburg, for plaintiff in error.
C. E. Spear and J. S. Clark, both of St. Petersburg, for defendant in error.
The declaration herein contains common counts and a special count setting up a breach of contract. The defendant pleaded that he never was indebted as alleged, and that he did not promise as alleged. Both parties adduced evidence. The court 'instructed counsel for the respective parties that the defendant had the concluding argument to the jury, and counsel for defendant did make the concluding argument to the jury.' Verdict was rendered for the defendant.
A motion for new trial was granted 'because the court is of the opinion that plaintiff was deprived of a substantial right in not being allowed to make the closing argument to the jury--which action was taken by the court of its own initiative, and which the court now believes was error.' As allowed by the statute (section 2905, Revised General Statutes 1920), a writ of error was taken to the order granting a new trial.
In the absence of a statute or rule upon the subject where the plaintiff has anything to prove in order to get a verdict, whether in an action ex contractu or ex delicto, and whether to establish his right...
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Wike v. State
...rule was that the party who had the burden of proof had the right to begin and conclude the argument to the jury. Huston v. Green, 91 Fla. 434, 108 So. 846 (1926). The rule applied to both civil and criminal cases. Faulk v. State, 104 So.2d 519 (Fla.1958); Smith v. State, 155 Fla. 148, 19 S......
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City of Miami v. Bopp
...91 Fla. 273, 107 So. 646; Aberson v. Atlantic Coast Line R. Co., 68 Fla. 196, 67 So. 44; Huston v. Green, 91 Fla. 434, 107 So. 368, 108 So. 846; Scott v. National City Bank, Fla. 818, 139 So. 370, 142 So. 650, 143 So. 444, 146 So. 573. The necessary showing has not been made to warrant this......
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Holstun v. Embry
......402] . . [124. Fla. 557] Stanton Walker, of Jacksonville, William K. Whitfield, and H. H. Wells, both of Tallahassee, and E. B. Green, of Ocala, for plaintiffs in error. . . Frank. R. Greene, of Ocala, and S. Whitehurst's Sons, of. Brooksville, for defendant in error. ...909, 130 So. 601; Cheney v. Roberts, 77 Fla. 324, 81 So. 475; Anthony Farms Co. v. Seaboard Air Line Ry., 69 Fla. 188, 67 So. 913;. Huston v. Green, 91 Fla. 434, 107 So. 368, 108 So. 846. . . The. party making a motion for a new trial is entitled to the. benefit of the ......
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Collins Fruit Co. v. Giglio
...Inc. v. Belflower, 1947, 159 Fla. 741, 32 So.2d 738; Florida Dairies Co. v. Ward, 1938, 131 Fla. 76, 178 So. 906; Huston v. Green, 1926, 91 Fla. 434, 435, 108 So. 846. From a practical standpoint, however, there is more of substance in appellate review when the issue posed is the granting o......