
    Brower et al. v. Nellis et al.
    [No. 1,607.
    Filed October 14, 1896.]
    
      Trial. — Burden of Proof. — Right to Open and Close. — Where no issue is formed on the complaint, and the only issue is upon a counterclaim filed by the defendant, the defendant has the burden of proof, and has the right to open and close.
    From the Montgomery Circuit Court.
    
      Reversed.
    
    
      P. S. Kennedy and S. C. Kennedy, for appellants.
    
      James Wright and James M. Seller, for appellees.
   Ross, J.

On the former appeal of this cause, Brower et al. v. Nellis et al., 6 Ind. App. 323, it was decided that the pleading filed by the appellants as an answer to the complaint, was not in fact an answer, and did not state a good defense to the action, but was a counterclaim and as such was sufficient to withstand a demurrer.

The only pleadings filed as shown by the transcript before us were the complaint, the pleading, denominated an answer, but as heretofore stated, held to be a counterclaim, and a reply to such answer (counter claim) in three paragraphs, of which the first was a general denial. No issue was formed on the complaint, the only issue being upon the counterclaim.

Ordinarily the issues formed by the pleadings determine the right to the open and close on the trial of the cause. The party upon whom rests the burden of the issue, as formed by the pleadings, is entitled to the open and close. Upon a trial of the issue formed on the appellants’ counterclaim the burden rested upon the appellants. The court below, therefore’, erred in refusing to permit the appellants to have the open and close on the trial upon the issue formed on the counterclaim.

Judgment reversed with instructions to sustain the motion of the appellants for a new trial.  