E. Van Winnle Gin & Mach. Works v. Pittman

• Decision Date: 04 July 1907
• Docket Number: (No. 318.)
• Citation: 58 S.E. 379,2 Ga.App. 246
• Parties: E. VAN WINNLE GIN & MACHINE WORKS. v. PITTMAN et al.
• Court: Georgia Court of Appeals

58 S.E. 379

(2 Ga.App. 246)

E. VAN WINNLE GIN & MACHINE WORKS.

v.PITTMAN et al.

(No. 318.)

Court of Appeals of Georgia.

July 4, 1907.

1. Trial—Right to Open and Close.

The right to open and conclude in a jury trial is of great importance; and the plaintiff should not be deprived of this right, unless the defendant, in his pleadings, before the introduction of any testimony by the plaintiff, admits facts authorizing, without further proof, a verdict in the plaintiff's favor for the full amount claimed in the declaration.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 47.]

2. Same.

Oral admissions by the defendant are not sufficient to entitle him to the opening and conclusion. Admissions for that purpose must be made in his pleadings.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 50.]

3. Same.

In a suit by a corporation, as such, on a promissory note which contains a provision for attorney's fees, and alleging written notice of intention to sue, as required by law, an admission in the answer, limited to the execution of the note, accompanied with a denial of the allegation as to notice of intention to sue, is not sufficient to entitle the defendant to open and conclude the argument. (Syllabus by the Court.)

Error from City Court of Jefferson; W. W. Stiirk, Judge.

Action by the E. Van Winkle Gin & Machine Works against W. C. Pittman and others. Judgment for defendants, and plaintiff brings error. Reversed.

J. S. Ayers and Ellis, Wimbish & Ellis, for plaintiff in error.

John B. Gamble and Shackelford & Shackelford, for defendants in error.

HILL, C. J. This was a suit on a promissory note. The petition alleged that the plaintiff was a corporation, that the defendants were jointly and severally indebted to it in the amount of the note made and delivered to it by the defendants, and that written notice had been duly served on the defendants of an intention to sue. The defendants filed a joint answer. They denied that plaintiff was a corporation under the laws of Georgia. They denied that any written notice was served on them as required by law of an intention to sue. They admitted the execution of the note sued on. They further answered that they had paid $100 on the note, which had not been credited to them. The jury found a verdict for the plaintiff for the amount which the defendants admitted in their answer was due on the note. The plaintiff made a motion for a new trial, and the court overruled the motion. On the trial of the case, when counsel for plaintiff had opened the case and tendered in evidence the note sued on, the attorneys for the defendants stated orally that the defendants would admit a prima facie case, and asked that they be allowed the opening and conclusion. Over the objection of the plaintiff, the court permitted the defendants to assume the burden and open and conclude the argument before the jury. The plaintiff excepts to this ruling, because it deprived the plaintiff of its legal right, and was contrary to law and the rules of the court. Besides the general grounds, it assigns several errors in the admission of testimony. We think it only necessary to review the ruling allowing to th'e defendants the right to open and conclude the case.

1, 2. The Supreme Court has frequently held that the right to open and conclude in a jury trial is an important right, and that an improper denial will work a reversal. Buchanan v. McDonald, 40 Ga. 288; Chapman v. Atlanta & West Point Railroad, 74 Ga. 548; Fisher v. Jones Co., 108 Ga. 490, 34 S. E. 172. This right is most valuable when the questions in the case are largely dependent upon the facts, and the opinion which the jury may entertain of conflicting evidence. Of course, the general rule is that this right belongs to the plaintiff; and before the defendant will be entitled to open and conclude the argument he must in his pleadings admit enough to make out a prima facie case for the plaintiff. In other words the pleadings of the defendant must contain admissions sufficient to entitle the plaintiff to a verdict for the full amount sued for. Admissions made by the...