Tippy v. State.

where the terms of court are fixed by statute so that one term closes in a particular county at a definite time and a term in another county begins, there being but one judge in the district, court cannot be held in two counties at the same time for the reason that the authority is wanting. (Cain v. Goda, 84 Ind., 209; In re Millington, 24 Kan., 214; Dunn v. State, 2 Ark., 229; Garlick v. Dunn, 42 Ala., 401; Freeman, Judgments, sec. 121; Bates v. Gage, 40 Cal., 183; Smurr v. State, 105 Ind., 125.)

In the case last cited it is said: "The question of power or authority might, perhaps, have arisen had the adjourned term been fixed at a time when the law imperatively required that the Kosciusko circuit court should be in session; but its adjourned term was not fixed at a time when that court was required to be in session. On the contrary, it was fixed at a time when the judge might rightfully have adjourned that court. This feature is a prominent one, and distinguishes the case from such cases as that of In re Millington, supra," and it was held that the adjourned term was held under legal authority. In State v. Stevens, 25 N. W. Rep. [Ia.], 777, the supreme court of Iowa held that where a trial was in progress at the time fixed for holding court in another county, the judge could adjourn the term in such other county for one week to give sufficient time to complete the trial, and the same ruling was made by that court in State v. Peterson, 25 N. W. Rep. [Ia.], 780. These cases, although they do not refer to, yet overrule, Davis v. Fish, 1 G. Greene [Ia.], 106, and Grable v. State, 2 G. Greene [Ia.], 559. In State v. Leahy, 1 Wis., 225, and State v. Montgomery, 8 Kan., 351, it was held, in effect, that the judge may adjourn the term of the district to a day subsequent to that fixed by law for the commencement of the regular term of court in another county in the same district.

In all the cases cited the terms were fixed by law. In this state, to avoid some of the difficulties which existed under the former system, the constitution authorizes the

Tippy v. State.

judges of the several districts to fix the terms of court in their respective districts. (Art. XVI, sec. 26.) The constitution, also to provide for the necessities of some of the counties of the state where one judge would be unable to transact the business of a county, authorizes the election of two or more judges in a district. (State v. Stevenson, 18 Neb., 416.)

Section 1061 of the Consolidated Statutes provides: "The judges of the district court shall, on the 1st day of January of each year, fix the time of holding terms of court in the counties composing their respective districts, during the ensuing year, and cause the same to be published throughout the district, if the same can be done without expense. The clerk of each district court shall note on the bar docket of each term the time so fixed for holding court in his county. The terms shall be so fixed as not to conflict with the time fixed by rules of the supreme court for the hearing of causes therein from said districts. The clerk of the supreme court shall, before the 1st day of January of each year, notify each district judge of the times fixed by the supreme court for the hearing of causes from his district. All terms of the district court shall be held at the county seat in the court house, or other place provided by the county board. be held at the same time in different counties in the same judicial district by the judge of the district court thereof, if there be more than one, and, upon request of the judge or judges of such court, any term in such district may be held by a judge of the district court of any other district of the state. When necessary, the district court sitting in any county may be continued into and held during the time fixed for holding such court in any other county within the district, or may be adjourned and held beyond such time." This section was amended in 1885 to cover the very point in controversy here, by permitting two judges, when necessary, to sit in the different counties of

Terms of court may

Suiter v. Park Natl. Bank.

a district at the same time. This disposes of this, objection.

Second-It is not seriously questioned that the evidence is sufficient to establish the guilt of the plaintiff in error, although it is intimated that the sentence is too severe. There is no material error in the record and the judg

ment is

THE other judges concur.

AFFIRMED.

JOSEPH SUITER V. PARK NATIONAL BANK OF CHICAGO.

[FILED OCTOBER 11, 1892.]

1. Trial: OPENING AND CLOSING. When, in an action on a note on the issue made by the pleadings, the plaintiff would be required to prove any fact to entitle him to recover, he has the right to open and close. If, however, the defendant in his answer admits the plaintiff's cause of action, but sets up new matter, such as usury for a defense, so that the defense would fail without proof of such new matter, the defendant is entitled to open and close.

2. Directing Verdict. Where, from the testimony before the jury, different minds might draw different conclusions, it is error to direct a verdict.

3. Usury: PROMISSORY NOTE: BONA FIDE HOLDER: ONUS PROBANDI. When usury is clearly established in the transaction, the burden of proof is on the person holding the instrument to show that he is a bona fide holder for value before maturity.

ERROR to the district court for Saline county. Tried below before MORRIS, J.

L. W. Colby, and Pemberton & Bush, for plaintiff in

error.

F. I. Foss, and Hastings & Me Gintie, contra.

Suiter v. Park Natl. Bank.

MAXWELL, CH. J.

This action was brought in the court below upon a promissory note, as follows:

"$4,309.38.

DE WITT, NEB., January 10, 1889. "On the 10th day of June, 1889, after date, for value received, I promise to pay to the order of Fayette I. Foss, of Crete, Neb., four thousand three hundred nine and 38 dollars, with interest at the rate of 10 per cent per annum from maturity until paid. Negotiable and payable at the De Witt Bank at De Witt, Neb.

"No. 1377. Due 6-10-'89.

Said note was endorsed as follows:

JOSEPH SUITER."

100

"For value received I hereby waive notice of protest and non-payment, and guarantee payment of the within FAYETTE I. Foss. "6-25. Cr. on the within note; Cr. on $1,790.14; Cr. on $1.40."

note.

The note was afterwards indorsed by the cashier of the De Witt Bank and delivered to the defendant in error. It is admitted that $1,790 and $1.40 have been paid on the note.

Suiter in his answer, which is very long, admits the making of the note, but alleges, in substance, that the note in question is the culmination of a long series of usurious transactions, which are set out at length, and that the plaintiff below is not a bona fide purchaser and holder of the note.

On the trial of the cause the court directed a verdict for the plaintiff below and the jury returned a verdict in its favor for $2610.68, and a motion for a new trial having been overruled, judgment was entered on the verdict.

The first objection of the plaintiff in error is that he was denied the right to open and close on the trial, and was thereby prejudiced. If the testimony in the case justi

Suiter v. Park Natl. Bank.

fied the court in directing the jury to find a verdict for the plaintiff below there would be no error in having denied the defendant below the right to open and close, if the defendant below admitted the cause of action of the plaintiff below, so that he had nothing to prove except for the new matter to entitle him to recover, then the defendant was entitled to the opening and closing. An examination of the answer shows that the defendant below admitted the making and delivery of the note and all the facts stated in the petition, so that no proof would be required on the face of the pleadings, if the cause was submitted in that form, to entitle the plaintiff below to recover.

Judge Thompson, in his valuable work on Trials, after stating the rule adopted by this court that if, on the pleadings, the plaintiff would be required to prove any fact to entitle him to recover, he is entitled to open and close (Rolfe v. Pilloud, 16 Neb., 21; Osborne v. Kline, 18 Id., 344; Vifquain v. Finch, 15 Id., 505; Mizer v. Bristol, 30 Id., 138), says: "Where the action is upon a contract which, by its terms, liquidates the damages-as upon a promissory note, bill of exchange, bank check, bill single, policy of life or fire insurance, or any other written instrument which, by its terms, fixes the amount of the recovery -and the defendant admits the execution of the instrument, but sets up an affirmative defense, such as duress, fraud, want of jurisdiction, usury, a discharge under an insolvent debtor's act or in bankruptcy, want of title in the plaintiff, tender, or other affirmative matter of defense, or pleads a set-off or counter claim-in all such cases the plaintiff has nothing to prove in order to recover; upon a default an inquiry of damages would be unnecessary; and, therefore, the right to begin and reply is with the defendant." (Thompson on Trials, sec. 231.) He cites the cases to which the reader is referred.

The defense of usury is an affirmative one, which, being proven, the burden is on the plaintiff below to show it is a