Hogsed v. Hogsed , 230 Ga. 232 ( 1973 )

Undercofler, Justice.

Neva Jo Nichols Hogsed filed a complaint for divorce, alimony and child custody against Howard Hogsed. The jury returned a verdict for the plaintiff for a divorce and awarded certain property to her as alimony. Howard Hogsed moved for a new trial which was overruled by the trial court. The appeal is from this judgment. Held:

The appellant contends that the trial court erred in ruling that he was not entitled to the opening and closing arguments before the jury even though he had introduced no evidence in the case. The appellant objected to the ruling of the trial court at the time it was made and enumerates it as error in this court.

Submitted February 12, 1973 Decided March 8, 1973. Oliver & Oliver, Robert F. Oliver, Hugo M. Martin, for appellant. Paul Knight, Jr., for appellee.

"When the defendant in a civil case introduces no evidence, he is entitled to the opening and conclusion of the argument.” Moore v. Carey, 116 Ga. 28 (5) (42 SE 258); Willett Seed Co. v. Kirkeby-Gundestrup Seed Co., 145 Ga. 559 (5) (89 SE 486); Newsome v. Harrell, 146 Ga. 139 (2) (90 SE 855); Williamson v. Williamson, 176 Ga. 510 (2) (168 SE 256).

The appellee contends that this rule does not apply to divorce cases since a divorce cannot be obtained by default in this state and must be proved by evidence. Code Ann. § 30-113 (Ga. L.1895, p. 46; 1958, p. 315; 1967, pp. 226, 246).

There is no merit in this contention.

The verdict for divorce and alimony was not demanded by the evidence in this case and as the appellant had introduced no evidence, his attorney was entitled to the opening and concluding argument before the jury. Code Ann. § 30-113; Willett Seed Co. v. Kirkeby-Gundestrup Seed Co., 145 Ga. 559 (5), 560 supra; Moore v. Carey, 116 Ga. 28 (5), supra; Arthur v. Commrs. of Gordon County, 67 Ga. 220 (5).

Judgment reversed.

All the Justices concur.