Olds Wagon Co. v. Benedict

Reese, Ch. J. This cause was decided at the January, 1889, term of this court, and is reported in 25 Neb., page 372. A motion for a rehearing was subsequently filed, and sustained, and the cause has been resubmitted on oral and printed arguments. It is contended by defendant in error: First, That even were it true that the district court erred in the order of hearing argument by giving defendant the opening and closing, yet such error would be without prejudice, and hence no ground for reversal; and Second, That defendant being the moving party in his effort to have the attachment discharged, he was entitled to the opening and closing, and that the decision of the district court was correct. These questions have been ably discussed in the briefs •and- arguments of counsel, but the time at our disposal will not permit, nor does the case seem to require, a review of the cases cited. While it is the opinion of the writer that the law upon both points is with defendant in error, yet this view is not entertained by the majority of the court, and the former decision will be adhered to, by which the rule is established in this court, that where a motion to discharge an attachment is based upon affidavits to be used as evidence, the allegations of fact in the affidavit for the attachment being denied, the burden is on the party holding the affirmative, which would be the plaintiff in the action, and therefore he should be permitted to have the opening and closing, both in the order of proof and argument. Reversed and remanded.