Bethea v. Prothro

By the Court. Benning, J., delivering the opinion. It is true, we think, that on such an issue as this the defendant in the action has the right to open ; and also, the right to conclude, provided the plaintiff introducing evidence. The plaintiff’s affidavit makes out a prima facie ease for him. It is also true, that the court in the present case refused the defendant’s motion to be allowed to open and conclude. But does it thence follow that this court ought to grant a new trial of the issue? We think not. It may be that the effect of the plaintiff’s having to open was of benefit to the defendant, for it may be that the plaintiff introduced the very evidence which the defendant would have introduced, if he had opened. If this was so, the effect of the plaintiff’s having to open was of benefit to the defendant, rather than of injury— for it gave him the conclusion. What were the facts in this respect, does not appear in the record. There is nothing in the record to show that any evidence was introduced by either party; or to show that any address to the jury was made by either party. In a word, there is nothiug in the record to show that the decision, even if wrong, worked any harm to the plaintiff- in error. We may say, then, we think, that what we are allowed to see in this case, is not sufficient to justify us in granting a new trial. Judgment affirmed.