Perkins v. Ermel

By the Court-, Bailey, J". The first point assigned as error in this case; is that, “ The Court erred in refusing to the defendant the right of opening the case and introducing evidence in support of the issue on his part first, and in allowing the plaintiff to open the case and introduce evidence on his part first.” • The rule by which the Code determines the right to open and close, is very simple, and in most cases easily applied. See Code, Sec. 277. [330] “ The party who would be defeated if no evidence were given on either side must first produce his evidence.” In the case at bar the petition sets up an indebtedness of $200.00 from defendant to plaintiff, on the sale of a carriage. The defendant sets up two defences in his answer, first, a general denial, and second, an allegation that he had delivered to plaintiff án order drawn upon third parties for the amount which the plaintiff had accepted in lieu of payment of his claim. Translating the pleadings' into the ■ style of common colloquial conversation, it would import simply that the plaintiff demanded of defendant two hundred dollars as the price of a carriage sold to him; to which the defendant answers : I deny that I ever bought a carriage of you for two hundred dollars, or any other price, and if you should succeed in proving that I had the carriage, I shall endeavor to show that the transaction was not such as you represent it, but a very different one, and that I have fulfilled on mypart the only contract I ever made with you about a carriage. If such were the substance and effect of the pleadings upon which the issue was raised, it cannot admit of a question that the plaintiff would have been “ defeated if no evidence had been given on his side,” and consequently the Court did not err in refusing to the defendant the right of opening the case and introducing evidence in support of the issue on his part first. ¥e think such was the legal effect of the pleadings. A general.denial under the Code is equivalent to the plea of the general issue at common law, and traverses every material allegation of the petition, and puts the plaintiff upon the proof of his cause of action. Van Dusen v. Pomeroy, 24 Ills., 289; Bump v. Smith, 11 N. H., 48; Buzzell v. Snell, 5 Poster, 474. As to the second alleged error of the Court below “in rejecting the parole evidence of the defendant offered by him as to the amount of the order delivered by him to the [331] plaintiff in payment of the plaintiff’s claim,” we need only remark that the proper evidence to prove the amount of the order was the written order itself, and until that order had been produced or the failure to do so accounted for, the parole evidence was clearly incompetent. The question propounded by defendant’s counsel to defendant as witness—“ State to the jury whether or not yon drew and delivered to the plaintiff such an order as' you agreed to give in payment for the carriage,” was liable to the same objection as the preceding, and was properly ruled out by the Court, for the reasons ah’eady stated. The right to open and close the argument to the jury is governed by the same rule as the production of evidence, as the Code expressly provides that the party required first to produce his evidence shall have the opening and conclusion. Code, Sec. 211. The next assignment of error is that the Court erred in allowing the plaintiff’s counsel to comment on the contents of a paper 'that had not been offered in evidence, in his closing speech to the jury.” From the very nature of the case it will always be difficult if not impossible for a legislature or a reviewing tribunal to define the exact limits within which counsel must confine their argument. The paper commented on, as 'appears by the bill of exceptions, was an affidavit made by the defendant to procure a continuance of the case, but it does not- appear to this Court in the bill of exceptions or in any other way, what comment was made • by plaintiff’s counsel, or under what circumstances. For aught that appears the defendant’s counsel might first have commented on the affidavit. Nor does anything appear in the record to show that such comments were prejudicial to the plaintiff in error. If they were so, it would have been the duty of the Court that tried the cause to restrain the counsel within proper limits, and as the record fails to show facts enough to warrant the [332] interposition of this Court, we are bound to presume that the Court below exercised the proper judicial discretion in this, as in all other matters where the oontrary does not appear. The alleged misconduct of a juror, as set forth in an affidavit in support of the motion for a new trial, seems to have been fully and satisfactorily explained in the affidavit of the juror himself, showing conclusively that the alleged misconduct was the result of misapprehension, and had not influenced his'action with regard to the verdict or prejudiced the ¡substantial rights of the defendant. There is perhaps room .for doubt whether the affidavit of a juryman could be held admissable for the purpose of explanation, but it may well be doubted whether the alleged misconduct was of a character to require explanation. It has repeatedly been held that irregularities on the part of jurors similar to that complained of in this case, would not be cause of setting aside a verdict. Thus, when after a jury had retired two jurors separated from their fellows and were gone some hours but returned and joined in the verdict, the Court refused to set aside the verdict, it not appearing that either party was affected by. their absence. {Smith v. Thompson, 1 Cow., 221.) So in New Jersey, it has been held that the mere fact of some of the jurors being for a time separated from their fellows, is not in a civil action a sufficient ground to set aside a verdict. Oram v. Bishop, 7 Hals., 153. Judgment affirmed. All the justices concurring.