Massengale v. Pounds

• Citation: 28 S.E. 510,100 Ga. 770
• Parties: MASSENGALE et al. v. POUNDS.
• Decision Date: 05 May 1897
• Court: Georgia Supreme Court

28 S.E. 510

100 Ga. 770

MASSENGALE et al. v. POUNDS.

Supreme Court of Georgia

May 5, 1897

Syllabus by the Court.

1. In order to entitle a defendant to the opening and conclusion in an action on a contract, he must, before the introduction of any evidence, admit facts authorizing, without proof on the part of the plaintiff, the latter's right to recover. It is too late, after the plaintiff has made out a prima facie case, for the defendant to make any admission which will deprive the plaintiff of the right to open and conclude before the jury.

2. The right to open and conclude before the jury is an important legal right, and an improper denial thereof, in a close case demands the grant of a new trial.

Error from superior court, Warren county; Seaborn Reese, Judge.

Action on a promissory note by S.E. Massengale & Co. against M. F Pounds. Judgment for defendant, and plaintiffs bring error. Reversed.

E. P Davis, for plaintiffs in error.

Jas. Whitehead, for defendant in error.

SIMMONS C.J.

Massengale & Co. brought their action of complaint against Mrs. Pounds on a promissory note. She pleaded payment, and on the trial of the case plaintiffs introduced evidence making out a prima facie case, and closed. The defendant introduced evidence to sustain her plea, and the plaintiffs introduced evidence in rebuttal. At the conclusion of the evidence, defendant's counsel moved the court to allow him to open and conclude the argument, admitting that the plaintiffs had made out a prima facie case, and that his client assumed the burden of proving that plaintiffs were not entitled to recover. The court granted the motion and the plaintiffs excepted.

1. The burden of proof to establish his case generally rests upon the plaintiff who brings the action, and the plaintiff is generally entitled to open and conclude the argument before the jury. In order for a defendant to deprive him of this right in an action upon a civil contract, the former must, at the beginning of the trial and before the introduction of any evidence by the plaintiff, admit facts which would authorize the plaintiff to recover without the introduction of any proof, and assume the burden of proof himself. It is too late, after a plaintiff has introduced his evidence and made out a prima facie case, and the defendant has introduced his evidence, for the latter to assume the burden of proof, and by any admission, to deprive the plaintiff...