TEXAS. Revised Code of Texas, 1911, Articles 1951 and 1953, provides: "Unless the Court for good cause otherwise directs, the trial shall proceed as follows: (1) The pleadings shall be read by the plaintiff and defendant respectively. (2) The party upon whom rests the burden of proof on the whole case under the pleadings shall then be permitted to state his case and introduce his evidence. (3). The other party then has the same right. (4) After the evidence is concluded the parties may submit the case to the jury. (5) The party having the burden of proof under the pleadings of the whole case shall be entitled to open and close the argument." Under the rules of Court defendant may admit a good case in the plaintiff's pleadings and obtain the opening and close, but the admission must be entered of record before the trial begins. Heath v. Bank, 19 Tex. Civ. App. 63; 41 S. W. 123, Alstron v. Condiff, 52 Tex. 460. The party who has the affirmative of the issues to sustain is entitled to open and close the argument, but while the party having the burden of proof is entitled to open and close, yet an erroneous ruling of Court on this matter will not reverse a judgment if no apparent injury has resulted and the judgment is in other respects unexceptionable. Latham v. Selkirk, 11 Tex. 314, Willis v. Stamps, 36 Tex. 48, May v. Rothe, 61 Tex. 376. In a case of contested facts where the opening and closing may be a substantial right, to refuse the privilege to the proper party is reversible error. Belt v. Raguet, 27 Tex. 471. UTAH. The Compiled Laws of Utah, 1907, Section 3147, is in part as follows: "The trial shall proceed as follows unless the Court shall for special reasons otherwise direct: (1) The plaintiff after stating the issues shall open the case and produce the evidence on his part. (2) The defendant may then open the case and produce the evidence on his part. (3) When the Court has instructed the jury, the plaintiff must commence and may conclude the argument." VERMONT. The right to open and close the evidence in a case does not belong to the plaintiff or defendant as such, but depends entirely upon which party takes the affirmative of the issue, and the right to rest upon a prima facie showing is mutual. Goss v. Turner, 21 Vt. 437. Whenever the plaintiff is bound in the first instance to make out his case by evidence he has a right to begin and close the argument. Harvey v. Bruilette, 61 Vt. 525, VIRGINIA, Where the general issue is not pleaded but only special pleas the proof of which rests upon defendant, it may be proper for Court to allow counsel for defendant to open and close. Stepto's Admin. v. Harvey, 7 Leigh 501. The defendant does not by withdrawing the plea of general issue after the argument has begun thereby become entitled to the opening and close. It is only when the defendant pleads affirmative matter alone, the proof of which rests upon him, that he can claim the right to open and close, so if the general issue is filed as well as a counter claim the defendant cannot have the opening and close. Wright v. Collins, Admin., 69 S. E. 942. WASHINGTON. The Codes and Statutes of Washington, Vol. 1, Chap. 11, Sec. 339, provide: "The trial shall proceed in the following manner: (1) The plaintiff shall briefly state his cause of action and evidence in support thereof. (2) Then the defendant shall do the same. (3) The plaintiff or party on whom rests the burden of proof in the whole action must first produce his evidence. (4) Then the adverse party produces his evidence. (5) The plaintiff or the party having the burden of proof then begins the address to the jury." Party having the burden of proof is entitled to the opening and close. Coffman v. Spokane Chronicle, 65 Wash. 1; 117 Pac. 696. In an action of libel when publication is admitted by the defendant and the defense is justification, the burden of proof is on the defendant, and it is entitled to open and close. Hall v. Elgin Dairy Co., 15 Wash. 542; 46 Pac. 109. In a suit on a note where the defense is failure of consideration or payment, the defendant is entitled to open and close. McDougall v. Walling, 19 Wash. 80; 52 Pac. 530. WEST VIRGINIA. Where in an action on a bond the defendant pleads as the only defense, payment and usury, the defendant has the opening and close. Sammons v. Hawvers, 25 W. Va. 678. WISCONSIN. Party holding the affirmative of the issue, whether he be plaintiff or defendant, has the right under the Wisconsin practice to open and close the case to the jury, but error in applying the rule will not reverse the case unless there is clearly an abuse of discretion by the Judge. Marshall v. American Express Co., 7 Wis. 1, Kaime v. Omro, 49 Wis. 371; 5 N. W. 838. Where all the material averments are admitted by the answer and new matter set up in avoidance, defendant has the affirmative and the right to open and close. Second Ward Savings Bank v. Shakman, 30 Wis. 333, Bonnell v. Jacobs, 36 Wis. 59. In a consolidated action against several insurance companies where most of the companies set up affirmative defenses, but where two of them filed denials of certain allegations of the complaint, it was held that the plaintiff was entitled to the opening and close and this was not taken away by an admission at opening of trial of facts so denied in the answers. Bannon v. Insurance Co. of North America, 115 Wis. 250; 91 N. WYOMING. The Wyoming Compiled Statutes, Section 4499, provide: "The trial shall proceed in the following manner unless the court for good cause or reasons shall otherwise direct: (1) The party on whom rests the burden of the issues may, briefly state his case and the evidence by which he expects to sustain it. (2) The adverse party does the same. (3) The party on whom rests the burden of the issues then produces his evidence. (4) Then the adverse party does his." Note: It may be assumed that the argument will follow the same order as the evidence. THE DUTY OF THE COURTS IN EACH STATE, UNDER THE FAITH AND CREDIT CLAUSE OF THE FEDERAL CONSTITUTION, TO APPLY THE LAW OF THE DOMICILIARY STATE OF THE CORPORATION, IN RELATION TO THE POWER OF A FRATERNAL BENEFIT SOCIETY TO IN CREASE RATES OF ASSESSMENT. By Howard C. Wiggins, General Counsel of the Royal Arcanum. The judicial trend of authority resembles from time to time atmospheric wave currents, favorable and unfavorable, promising and foreboding. The specialist in the subject of fraternal law, who has kept abreast of the decisions of the Courts of the various states during recent years, must have been impressed with the fact that the tendency, growing with ever increasing acceleration, in the multitudinous phases affecting the rights, powers and liabilities of fraternal benefit societies, has been to favor the individual member and to discredit sound, wholesome and necessary principles of what had been theretofore regarded as well established law. Things one "could not see' have been revealed in a most painful manner when Court decisions have been announced. A careful examination of the authorities discloses more than four hundred reported decisions on the extent of the reserved power of amendment, most of them decided in the last twenty years, and a hopeless conflict and confusion in the reasoning employed and avowed grounds of decision. The opinions abound in general language of every sort, endless discussions of vested rights, reasonableness, membership rights and membership duties, with every general affirmation of one case being met by an equally vigorous general denial in another. The most important question affecting the very existence of our societies, is, without doubt, the right of a society, under a general reserve power of amendment, to amend by-laws increasing assessment rates, and to make such changes applicable to members previously admitted. |