G., C. & S. F. R'y Co. v. Ross , 4 Willson 129 ( 1890 )

Opinion by

Will-son, J.

§ 87. Condemnation proceedings; trial; right to open and conclude argument. This is a proceeding brought by appellant to condemn land owned by appellees for right of way for a railway. It was adjudged that appellees should have $1,627.20 compensation for condemnation. On the trial in the county court the opening and conclusion of the evidence and the argument was accorded to appellees over the protest of appellant, and to this action of the court the appellant excepted, and has assigned and insists upon it as error for which the judgment should be reversed. In this proceeding under the statute the corporation is the actor, having the burden of proof, and is entitled to open and conclude the evidence and argument, unless the defendants should admit that the corporation has a good cause of action as set forth in its petition, in which case the burden of proof would be shifted, and the right to open and conclude would be with the defendants. [3 Civil Cas. Ct. App., §§ 409-415.]. No such admission was made by the defendants, and it was therefore error to accord to them the right to open and conclude the evidence and argument, and it cannot be regarded as immaterial error that such right was denied appellant.

April 23, 1890.

Reversed and remanded.