A petition for rehearing has been presented in this case, in which complaint is made that we erred in stating that the motion to amend the affirmative defense was made after the motion was made for an instructed verdict on the part of the plaintiff. There is room for confusion in sequence of events detailed but it is of such a nature that it makes no difference in the legal rights of the respective parties or the conclusion which should be reached.
The record at Folio 152 shows that counsel for the defendant rested his case as follows:
"Mr. CONNELLY: This is the defendant's case, if the Court please.
"The COURT: Gentlemen of the jury, you will be excused until called. (Jury retires.)"
(Here follows the motion to amend set out in the opinion herein.)
"The COURT: I am going to deny the motion, with the amendment asked. *Page 463
"Mr. KEETON: Comes now the plaintiff in the action, and moves the Court to direct the jury to return a verdict for the plaintiff on the first cause of action, for the sum prayed for in the complaint, namely, the sum of $2,318.68, together with interest thereon in the sum of six percent, from March 26, 1936, and a verdict in favor of the plaintiff on the second cause of action, in the sum of $997.50, together with interest thereon in the sum of six percent, from the 28th day of March, 1936. Upon the grounds and for the reason that there has been no defense pleaded which has been sustained by any proof, or no proof which sustains any pleading that defendant asked in his affirmative defense. And that the testimony introduced on the part of the defendant is wholly insufficient to constitute any defense to the plaintiff's complaint.
"The COURT: I think I will deny the motion."
The record shows that further argument ensued and finally at Folio 159 plaintiff started in examining witnesses on rebuttal. The rebuttal testimony ensues to Folio 276, then arguments followed and surrebuttal was offered to Folio 287; whereupon both parties rested and counsel for plaintiff renewed his motion for directed verdict, which was subsequently granted.
So it is clear that defendant's motion to amend his affirmative defense was made after he had introduced hisevidence and rested his case. Plaintiff did in fact introduce most or its evidence as rebuttal but defendant's evidence was already in and his case had been rested.
We find no cause for granting a rehearing or changing our views in this case.
Budge, Givens and Holden, JJ., concur. *Page 464