Grady's Adm'r v. Hammond , 21 Ala. 427 ( 1852 )

LIGON, J.

— According to the practice, as it has been for many years established in this State, the plaintiff is entitled to open and close the argument of his case before the jury. The only exception to his right to close the argument, is to be found in the 19th Buie regulating the practice in the Circuit Courts, which provides: “If the counsel for the plaintiff waives the right of opening the argument, he shall not have the righc of concluding.” Clay’s Dig. 610, Rule 19 ; Worsham v. Goar, 4 Por. 441.

The attitude which the case assumed in the court below, does not change the rule in this respect. Through all the changes of parties in that court, the administrator of Grady is the actor, and, consequently, the plaintiff. His attachment commenced his suit, his garnishment brings in Nolen, and his notice brings in Allen, the transferee of the note. Throughout, he occupies the position of plaintiff, and each of the other parties is brought in to defend against his pursuit; and the mere fact, that, in making up the issue with Allen, to try the validity of the transfer of the note to him, the latter was made to affirm the fairness and good faith of th^ transfer to himself, instead of denying fraud or unfairness imputed by the pleadings on the part of Smith, does not alter the relation of the parties to the case, or enlarge the rights of the defendant.

The counsel of Smith was entitled to open and conclude the argument on the issue, and as he did not waive his right, it was error in the court to refuse it to him.

Let the judgment be reversed, and the cause remanded.