McLees v. Felt
| Decision Date | 03 December 1858 |
| Citation | 11 Ind. 180 |
| Parties | McLees and Another v. Felt |
| Court | Indiana Supreme Court |
From the Wabash Circuit Court.
The judgment is reversed with costs. Cause remanded for a new trial.
J. U Pettit, J. Brownlee and H. P. Biddle, for appellants.
This was an action of replevin by the appellants, against the appellee for a quantity of merchandise.
The defendant answered in avoidance, setting up, in substance that he was entitled to a lien on the goods, for the freight on the transportation thereof from Cincinnati, Ohio, to Peru, Indiana, and from Peru to Wabash; wherefore, the plaintiffs were not entitled to the possession of the goods.
Replication in denial.
Trial by jury; verdict for defendant; and judgment on the verdict, a motion for a new trial being overruled.
On the trial, the Court gave the defendant the opening and close of the case. Exception was taken to this ruling.
The party on whom rests the burden of the issues is entitled to have the opening and close of the case. Shank v. Fleming, 9 Ind. 189.
In determining who has the affirmative, regard is had to the substance and effect of the issue, rather than to the form of it. We are inclined to regard the answer as affirmative, setting out the facts upon which the defendant claimed to have a lien upon the goods--concluding, therefore, that the plaintiffs were not entitled to the possession. The answer admits, as we think, the plaintiffs' right, unless the special facts set up for defense defeat that right.
But it is said that the rule is that, "wherever the plaintiff is obliged to produce any proof in order to establish his right to recover, he is generally required to go into his whole case, and is entitled to reply." 1 Greenl. Ev. § 74.
This, we recognize as the correct doctrine. But we are of opinion that under the issue formed, the plaintiffs were not required to introduce any proof in order to recover. The right of the plaintiff to the property was admitted, unless the defendant proved the facts set up, in virtue of which he claimed the right to the possession of the property.
It is insisted, however, that as allegations of value and amount of damage are not to be considered as true for the reason that they are not controverted, and, as on the trial the jury were to assess the value of the property and damage for the detention, the plaintiffs should have had the right to begin. This we think does not follow. The value of the property, and the damages for the detention, were questions merely incidental to the main one, as to the right to the possession of the property. This, case, we think, falls within that class where it has been held that if in trespass q. c. .., assault and battery, and for taking goods, a justification only is pleaded, the defendant is entitled to open and close. Vide note to Kimble v. Adair, 2 Blackf. 320; Downey v. Day, 4 Ind. 531. In all those cases, the damages sustained by the plaintiff must necessarily have been determined by the facts as they appeared on the trial. The amount of damages claimed in the declaration in such cases was never admitted by a failure to plead the general issue.
Had the plaintiff replied that they had paid or tendered the amount due for the freight, instead of...
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