Error is predicated upon the ruling of the court refusing to grant the appellant's request to open and conclude in adducing the evidence and in argument of the case. The court refused the request upon the ground, as stated in the bill of exception, that "the motion was not timely under rule 31." Under rule 31 (142 S.W. xiii), governing the practice in the district and county courts, the defendant is required, in order to establish for himself the right to open and conlude in adducing the evidence and in argument, to file and present to the court the admissions therein provided, at the following time, viz.: "After the issues of fact are settled, and before the trial commences." A defendant is not, we think, entirely without the terms of the rule, properly construed, if he, as here done, makes and presents the admission and request before the pleadings are read to the jury and before any evidence is offered. Duke v. Walter (Tex. Civ. App.) 227 S.W. 714. "The issues of fact are settled" in a case, within the meaning of the rule, when "the issues of law arising on the pleadings, and all pleas in abatement," as provided in article 1947, R.S., "shall be determined." And the term "before the trial commences" means and refers to the time when the opening of the case on its merits, or the order of proceeding on "a trial," is ready to begin, as outlined in article 1951, R.S. Article 1951, R.S., directs that the order of proceeding on a "trial" of a case shall be, first, the reading of the pleadings to the jury, then the introduction of evidence. It is the rule in this state that when the defendant properly complies with rule 31, in cases where the said rule applies, the matter of opening and concluding the evidence and the argument is a right, and not a subject of the court's discretion to grant or refuse. Smith v. Traders' National Bank, 74 Tex. 541, 12 S.W. 221. As appears to have been held, the said rule is available and applicable, and intended so to be, where the defenses to a cause of action are fraud, mistake, failure of consideration, and such like pleas of confession and avoidance, but that where the defense to a suit on a note is that of payment its terms are not available and applicable. Meade v. Logan (Tex. Civ. App.) 110 S.W. 188. Hence in the instant case the appellant was not injured by the refusal of the court to grant the request.
The plaintiffs asked the witness Gilly the question, "What did Mr. Wheeler tell you about this release, as to what he wanted ?" and the witness answered, "Well, he told me it was the wrong release; that it described the wrong note, the one that was assumed in the deed." The appellant objected to the question and to the answer, upon the ground that same was hearsay and not in the presence or hearing of the appellant; and the court overruled the objection. The answer is subject to the objection that it was hearsay, but the admission of the evidence does not, we conclude, afford ground to reverse the judgment, when all the facts and circumstances are considered.
The third, fourth, and fifth assignments of error pertain to the question of burden of proof heretofore decided in the former appeal of this case. Pierce v. Baker (Tex. Civ. App.) 238 S.W. 699. We think, as determined in that case, that the burden of proof remained on the party who was required to first introduce evidence on the affirmative pleading.
The judgment is affirmed. *Page 442