Buchanan v. McDonald

40 Ga. 286 | Ga. | 1869

McCay, J.

We are clear that the Court erred in holding that the sheriff had the right to open and conclude the argument, in this case. True, he was called upon to show cause, and if the question for argument was upon the rule and answer, under (new) rule 45, of the Superior Courts, the right to open and conclude would be his. But this is an issue formed upon his answer. He answers, under oath, as an officer of Court. It stands upon the footing of a return. Prima fade it was'to be taken for true. The plaintiff undertook to controvert it, to show that it was untrue, and the burden of proof was upon him. It was at hiá demand that the case was for .trial, and it was upon him to show that the sheriff’s answer was untrue. Code, section 3878.

This Court has decided in several cases, that the right to open and conclude in a question turning upon evidence, was upon the party on whom the burdeP of proof rests; and as the burden was upon the plaintiff in this issue, we hold the plaintiff had that right, and it was .error in the Court to refuse it. Nor was it an immaterial error. It is not worth while to disguise the truth or to conceal from ourselves that the right to open and condude, in a jury trial, is of prime importance. The right to open is important. It enables the party to give direction to the case, very often to choose the ground on which the battle shall be fought. And the right to conclude is'more important still. Even in fair- and legitimate argument, the party concluding has the advantage of knowing precisely the line of his opponent, and therefore of directing his attention to it, and'arraying everything in the case, that fairly illustrates and sustains his view of it.

We pass no judgment on the facts. We simply say that the plaintiff was at a disadvantage, in which the Court ought not to have put him. Judgment reversed.