Kells v. Davis
| Decision Date | 30 September 1870 |
| Citation | 1870 WL 6620,57 Ill. 261 |
| Parties | GEORGE KELLS et al.v.JOHN P. DAVIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.
Mr. W. D. BARRY and Mr. GEORGE WILLARD, for the appellants.
Messrs. STORY & KING, for the appellee.
This was an action of trespass for personal injuries, brought by the appellee against the appellants, in the Circuit Court of Cook county.
The appellants filed a plea of not guilty, and also two special pleas, justifying the assault and battery, upon all of which issue was joined. Before the trial, however, the plea of “not guilty” was withdrawn, and a trial was had on the issues joined on the special pleas, which resulted in a verdict for appellee for the sum of $160, of which amount the appellee, upon the suggestion of the court, and to prevent the granting of a new trial, remitted the sum of $60, and thereupon the court overruled the motion for a new trial, and rendered judgment on the verdict for $100.
The ground relied on for a reversal of the judgment, is, that the circuit court erred in allowing the counsel for the appellee to open and close the argument to the jury, and in not according that privilege to the counsel for the appellants.
The plea of not guilty having been withdrawn by leave of the court, there only remained the special pleas of justification. Under the issues thus formed, the burden of proof rested on the appellants, and, according to the practice in this State, their counsel was entitled to the opening and conclusion of the argument to the jury. In Harvey v. Ellithorpe, 26 Ill. 418, this was declared to be the correct practice. The reason for this rule proceeds on the ground that he who affirms a fact, is bound to prove it. The appellants were allowed, by the rulings of the court, to first offer their evidence to maintain their pleas, which entitled them to give any proper rebutting evidence to that offered by the appellee. This is the substantial benefit intended to be conferred by this rule. The counsel was only denied the privilege of opening and closing the argument to the jury.
While this ruling of the court may be regarded as a departure from what is understood to be the better and correct practice, it does not appear that the merits of the case were at all prejudiced by the erroneous ruling. So slight an error in practice ought not to be a...
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Shugart v. Halliday
...right to open and close, cited Harvey v. Ellithorpe, 26 Ill. 418; Heward v. Slagle, 52 Ill. 336; Huddle v. Martin, 54 Ill. 258; Kells v. Davis, 57 Ill. 261; Colwell v. Brower, 75 Ill. 516; Kent v. Mason, 79 Ill. 540. As to prescriptive right to highway from long user, and inference of dedic......
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Kurrus v. Mayo
...L. & S. E. R. R. Co. v. Britz, 72 Ill. 256. The affirmative issue was upon the defendant and he had the right to open and close: Kells v. Davis, 57 Ill. 261; Harvey v. Ellithorpe, 26 Ill. 418; Colwell v. Brower, 75 Ill. 516; 79 Ill. 540. The verdict is so uncertain and contradictory that it......
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Carpenter v. First Nat'l Bank.
...Bk. 73 Ill. 473; Hall v. Hamilton, 74 Ill. 437. As to opening and close: 1 Greenleaf on Ev., 75; Huddle v. Martin, 54 Ill. 258; Kells v. Davis, 57 Ill. 261; Kent v. Mason, 79 Ill. 540; Colwell v. Brower, 75 Ill. 516; Harvey v. Ellithorpe, 26 Ill. 418; Topper v. Snow, 20 Ill. 434; C. B. & Q.......
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Widdecombe v. Dietzsch
...v. Pritchett, 16 Ill. 66; Gordon v. Crooks, 11 Ill. 142; Higgins v. Lee. 16 Ill. 495. The verdict is against the law and evidence: Kells v. Davis, 57 Ill. 261; Shugart v. Halliday, 2 Bradwell, 45; Harvey v. Ellithorpe, 26 Ill. 418; C. B. & Q. R. R. Co. v. Bryan, 90 Ill. 126. Messrs. HUTCHIN......