Reed v. Reed

• Decision Date: 04 December 1916
• Citation: Reed v. Reed, 115 Me. 441, 99 A. 181 (Me. 1916)
• Parties: REED v. REED.
• Court: Maine Supreme Court

99 A. 181

115 Me. 441

REED

v. REED.

Supreme Judicial Court of Maine.

Dec. 4, 1916.

Exceptions and Motion from Supreme Judicial Court, Lincoln County.

Action by Melville H. Reed against J. Burton Reed. On exceptions by defendant. Exceptions sustained.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, and PHILBROOK, JJ.

Carl M. P. Larrabee, of Wiscasset, and C. R. Tupper, of Boothbay Harbor, for plaintiff. A. S. Littlefield, of Rockland, for defendant.

SAVAGE, C. J. This action of forcible entry and detainer was before this court in Reed v. Reed, 113 Me. 522, 95 Atl. 211. In the municipal court the defendant had pleaded the general issue, with a brief statement of title in himself and two others as tenants in common, and thereupon the case was removed to the Supreme Judicial Court, as required by statute. R. S. c. 96, § 6. We held that the municipal court had exclusive jurisdiction, subject to appeal, of all issues, except the defendant's title. In that court the plaintiff was bound to prove his title or right to maintain the action; but the defendant by pleading title and securing a removal of the case had waived all other defenses, and that the only issue triable in the Supreme Judicial Court was that of the defendant's title.

Upon a second trial, the defendant claimed the right to open and close. His claim was denied, and he excepted. The correctness of this ruling is the question now to be decided.

The right to open and close is a legal right. The grant or denial of it does not lie in the discretion of the court. Therefore an erroneous denial of it is exceptionable. Johnson v. Josephs, 75 Me. 547.

As a general rule, when the defendant pleads the general issue, the burden is on the plaintiff, and he has the accompanying right to open and close; and it is claimed that this rule holds, even if the defendant by way of brief statement pleads matter in bar, or by way of confession and avoidance. Ayer v Austin, 6 Pick. (Mass.) 225; Lunt v. Wormell, 19 Me. 100. Notwithstanding the plea, the plaintiff must prove his case, before the defendant is required to show his defense. The defendant contends that the rule does not hold in the peculiar situation of this case.

Of course, the right to open and close cannot be made to depend upon exigencies in the situation of the case which may arise as the trial proceeds. The rule as generally stated is that the right is to be determined by the state of the pleadings at the beginning of the trial. Merriam v. Cunningham, 11 Cush. (Mass.) 40; Seavy v. Dearborn, 19 N. H. 351; Ayer v. Austin, 6 Pick. (Mass.) 225; Heilbronn v. Herzog, 165 N. Y. 101, 58 N. E. 759; Lowe v. Lowe, 40 Iowa, 220. See, also, Washington Ice Co. v. Webster, 68 Me. 449; and note to Brunswick & W. R. Co. v. Wiggins, 61 L. R. A. at page 529. In other words, the right depends upon who has the initial or primary burden of proof, under the pleadings. Judge of Probate v. Stone, 44 N. H. 595. The right belongs to the party against whom judgment would be rendered, if no evidence were introduced on either side. Davis v. Mason, 4 Pick. (Mass.) 156; Boardman v. Woodman, 47 N. H. 120; Elwell v. Chamberlin, 31 N. Y. 611; Chicago, etc., R. Co. v. Bryan, 90 Ill. 126: Kent v. White, 27 Ind. 390; Brunswick & W. R. Co. v. Wiggins, 61 L. R. A. note at p. 514.

How does this case stand, in the light of these principles? Under the pleadings, the defendant's title, and not the plaintiff's, was the sole issue. The defendant's plea had eliminated all issues except that of his title. It had eliminated the office of the general issue. The case is not like the ordinary one where the defendant pleads the general issue with a brief statement. The plaintiff could safely rest upon the pleadings until the defendant had shown title. He was not...