delivered the oeinion oe the court.
Within thirty days after the passage of "an ordinance by the appellee, providing for the annexation of the town of ■South Louisville to the City of Louisville, the appellants, residents and free holders of the town, filed their petition .in the Jefferson Circuit Court, “setting forth the reasons why such territory, or any part thereof, should not be annexed.” The city answered denying the allegations of the petition, and seeking to avoid the force of the reasons urged against the annexation, and set up reasons why the ordinance should be approved.
By consent, the affirmative allegations of the answer were ■controverted of record, and upon trial before a jury, a finding resulted to the effect that a failure to annex the town to the city would materially retard the prosperity of the city and of the owners and inhabitants of the territory or town sought to be annexed. And from the judgment dismissing the petition and annexing the town to the appellee, this appeal is prosecuted. Beside the complaint that the verdict is flagrantly against the evidence, and which we need not notice, the appellants urge two grounds for reversal of the judgment:
1. That the court erred in giving to the appellee the conclusion of the argument.
2. That the jury should have been impaneled from the territory beyond the limits of either Louisville or South Louisville.
The record discloses that upon, the commencement of the trial, the appellant first called and introduced its wit*550nesses. No question was raised of the propriety of this course and it was entirely proper. The appellants had set forth certain facts in their petition without proof of which,. upon the denial of them by the appellee, their case would have failed at once. Sub-section 3 of section 317 of the Civil Code, provides that “the party on whom rests the burden of proof in the whole action, must first produce his evidence; the adverse party will then produce his evidence.” But in the same section, sub-sec. 6, it is provided' that “in the argument, the party having the burthen of' proof shall have the conclusion and the adverse party the opening.” So it would seem clear that the appellants ought to have had the conclusion of the argument. The' rule is that the burden of proof is on the party who would be defeated if no evidence was offered on either side. This test is to be applied from the very nature of the case, at the outset of the trial, and the point is determinable from the pleadings alone. If A sues R on the latter’s promissory note and the pleas of non est factum and of no consideration are interposed, the burden of proof “in the whole action” is on A, and even should B take the stand and admit the execution of the note, the burden of proof is not changed or the course of procedure affected.
The statute under which this proceeding was instituted, among other things, provides that “if the courts shall be satisfied that seventy-five per cent, or more of the resident freeholders of the territory sought to be annexed, or stricken off, have remonstrated, then such annexation or reduction shall not take place, unless the jury shall find from the evidence that a failure to annex or strike off will materially retard the prosperity of such city, and of the owners and' inhabitants of the territory sought to be annexed or stricken off.” Upon the conclusion of the entire testimony, the court *551in tlie ease at hand did find that over seventy-five per cent, of the resident freeholders of the territory within the boundary of ¡South Louisville had remonstrated against the annexation; and this finding of the court from the evidence, is thought in some way to have changed the rule and given the conclusion of the argument to the appellee. We do not think so.
In cases cited with approval by Mr. Greenleaf, the rule is thus stated: “The burden of proof is, therefore, fixed at the beginning of the trial by the nature of the allegations in the pleadings, and it is settled as a question of law, and does not eliafige during the course of the trial.” (Green-leaf on Evidence, sec. 74, note (a.) In the pleadings of this case there were no averments as to this per centum of protestants; it was wholly a matter of proof during the course of the trial, and did not and could not affect the legal question presented at its threshold.
It is urged in the second place that the members of the jury, who were all tax-payers and residents of the city of Louisville, were disqualified, by reason of their interest, to act in the capacity of impartial triers.
We are constrained to think that learned counsel have magnified the seriousness of this feature of the case. It may be true, indeed it would seem to be indisputable, that the members of the jury were, in a slight measure at least, interested in the result, but when we consider the population and wealth of the two territories we must admit the infinitesimal pecuniary effect the addition of the smaller town must have on the larger city. The interest of the juror is necessarily remote, uncertain and insignificant.
In Kemper and wife v. City of Louisville, 14 Bush, 87, where the plaintiffs were seeking damages of the city and objected to the trial of their case by jurors who were residents *552and tax-payers of the defendant, the objection was held not to be well taken after a careful review of the authorities. There is some suggestion of incompetent testimony having been allowed to go to the jury, but necessarily great latitude must be permitted to both sides in investigations of this character, and we perceive no error in this respect.
For the reason indicated, however, the judgment must be reversed for proceedings consistent with this opinion.