
    R. K. Welsh v. George F. Burr et al.
    Filed October 20, 1898.
    No. 8364.
    1. Reply: Defects in Answer: Waiver. The filing of a reply is a waiver of the right to assail the answer on the ground that the averments are not sufficiently definite and certain.
    2. Trial: Opening and Closing. Where a plaintiff is required to introduce any evidence in support of his case, he is entitled to first introduce his testimony before the jury, and also the right to open and close the argument.
    Error from the district court of York county. Tried below before Bates; J.
    
      Reversed.
    
    
      (}. W. Bemis, for plaintiff in error.
    
      F. C. Poioer, contra.
    
   Norval, J.

This suit was upon a promissory note by the indorsee against the makers. * The petition alleges the execution and delivery of the instrument declared on to the Royal Sewing-Machine Company, the payee mentioned therein, the indorsement of the note by it, that the plaintiff is the owner thereof, and that no part has been paid except the sum of $90 on October 20, 1893. The answer admitted the execution and delivery of the note, the payment of the $90, denied all other averments of the petition, and pleaded that the note was given for the purchase price of sewing-machines; averred substantially that the machines were sold under a certain warranty, and that they failed to comply with the terms thereof. The reply put in issue the warranty set up in the answer. The trial resulted in a verdict for the defendants, upon which judgment was .subsequently rendered. Plaintiff by means of this proceeding seeks a review of the record.

A point urged for a reversal is the overruling of plaintiff’s motion to require the defendants to make their answer more definite and certain by stating therein whether the warranty relied upon was verbal or written, and if verbal, who made it on behalf of the payee. The transcript of the record shows that the motion was made after plaintiff had filed his reply to the answer. The motion was too late to make the ruling thereon available in the appellate court. (Stevenson v. Anderson, 12 Neb. 83; Fritz v. Grosnicklaus, 20 Neb. 413.)

After reply plaintiff assailed the answer by motion to strike therefrom certain allegations therein, which motion was overruled by the court, and the ruling is assigned for error. The decision was proper, since the motion was filed after plaintiff had replied to the answer of the defendants. (Supra.)

The trial court refused to permit plaintiff to first introduce his testimony and to open and close the case to the jury. This was reversible error. The answer put in issue the indorsement and transfer of the note by the payee and the ownership of the instrument by plaintiff. In this state of the pleadings, had no evidence been adduced by either party, the verdict must Ipive been for the defenclants; so that the burden was on the plaintiff, and he was entitled to open and close the testimony and the arguments to the jury. (Vifquain v. Finch, 15 Neb. 505; Rolfe v. Pilloud, 16 Neb. 21; Osborne v. Kline, 18 Neb. 344; Brooks v. Dutcher, 22 Neb. 644; Suiter v. Park Nat. Bank, 35 Neb. 372; Mizer v. Bristol, 30 Neb. 138; Rea v. Bishop, 41 Neb. 203; Citizens State Bank v. Baird, 42 Neb. 219.)

There are argued other assignments of error, but the conclusion reached makes' their consideration at this time unnecessary. The judgment is reversed and the cause remanded.

Reversed and remanded.  