The Omaha & Republican Valley Railraod Co. v. Walker
| Decision Date | 29 April 1885 |
| Parties | THE OMAHA & REPUBLICAN VALLEY RAILROAD COMPANY, PLAINTIFF IN ERROR, v. MARY K. WALKER, DEFENDANT IN ERROR. THE OMAHA & REPUBLICAN VALLEY RAILROAD COMPANY, PLAINTIFF IN ERROR, v. E. T. HARTLEY, DEFENDANT IN ERROR. THE OMAHA & REPUBLICAN VALLEY RAILROAD COMPANY, PLAINTIFF IN ERROR, v. HENRY C. HARTLEY, DEFENDANT IN ERROR |
| Court | Nebraska Supreme Court |
ERROR to the district court for Lancaster county. Tried below before POUND, J.
AFFIRMED.
Harwood Ames & Kelly, for plaintiff in error.
Lamb Ricketts & Wilson, for defendants in error.
These cases were appealed to the district court of Lancaster county from the award of damages allowed by the commissioners appointed by the county judge of that county to appraise the amount to which the defendants were entitled for the right of way for the railroad across their respective tracts of land. The sole question presented is the amount to which each of the defendants is entitled. The cases were tried to the same jury--practically one trial in the court below, and a verdict for a specified amount returned in favor of each of the defendants. Although there are three records, presenting each case separately, yet as the questions presented are substantially alike in all, except as to the amount of recovery, the cases will be considered together.
The first error relied upon, and the one on which the most reliance seemed to be placed, is the refusal of the court below to permit the plaintiff in error to open and close the case. In support of this proposition it is said in the plaintiff's brief that Then, after quoting section 283 of the code, which provides that "the party who would be defeated if no evidence were given on either side must first produce his evidence; the adverse party will then produce his evidence," it is said: "The corporation would be defeated in the absence of evidence, because it is incumbent upon it to establish affirmatively, either that the award of the commissioners is full 'just compensation,' or else, that some other sum is, which it attempts to establish by testimony, and that upon payment or tender of it the road may be lawfully built and operated upon the land," etc. No case is cited to sustain the plaintiff's position.
In Vifquain v. Finch, 15 Neb. 505, 19 N.W. 706, the plaintiff claimed the right to open and close upon the ground that he had admitted the publication and justified. Malice, however, was denied, and it was held that the plaintiff in the action was entitled to the opening and closing.
The same ruling was had in Fry v. Bennett, 3 Bosw. 200. In that case, it was held that the amount of damages is a matter in issue, and, when proof of facts not admitted in the answer is admissible on that question, the defendant is not entitled to the opening and closing.
In determining which party is to begin and close, if anything is left for the plaintiff to show affirmatively, the right to commence and close is with him. Chesley v. Chesley, 37 N.H. 229. Lexington v. Paver, 16 Ohio 324. Heilman v. Shanklin, 60 Ind. 424. Tull v. David, 27 Ind. 377. If the plaintiff has any proof to offer as to damages, or otherwise to entitle him to recover, he is entitled to open. Huntington v. Conkey, 33 Barb. 218. Graham v. Gautier, 21 Tex. 111. Perkins v. Ermel, 2 Kan. 325. And this was the rule at common law.
In Lacon v. Higgins, 3 Stark. 178, the defendant had pleaded coverture, without the general issue, in assumpsit for goods sold. In a previous action for a similar cause, on a plea of non-joinder of one Cohen, the plaintiff being allowed to begin, it was insisted that he should give all his testimony as to Cohen; but Abbott, Ch. J., said, Stansfield v. Levy, 3 Stark. 8.
In note 223 to 1 Phillips on Ev. (4th Am. Ed.), 817, the rule is stated as follows: ...
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