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Rule 266. Open and Close - Admission
Except as provided in Rule 269 the plaintiff shall have the right to open and conclude both in adducing his evidence and in the argument, unless the burden of proof on the whole case under the pleadings rests upon the defendant, or unless the defendant or all of the defendants, if there should be more than one, shall, after the issues of fact are settled and before the trial commences, admit that the plaintiff is entitled to recover as set forth in the petition, except so far as he may be defeated, in whole or in part, by the allegations of the answer constituting a good defense, which may be established on the trial; which admission shall be entered of record, whereupon the defendant, or the defendants, if more than one, shall have the right to open and conclude in adducing the evidence and in the argument of the cause. The admission shall not serve to admit any allegation which is inconsistent with such defense, which defense shall be one that defendant has the burden of establishing, as for example, and without excluding other defenses: accord and satisfaction, adverse possession, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, release, res judicata, statute of frauds, statute of limitations, waiver, and the like.
Source: Texas Rule 31 (for District and County Courts).
Change: Reference to Rule 269. Substitution of “is entitled to recover” for “has a good cause of action,” substitution of “allegations” for “facts.” Last sentence added.
Oct. 29, 1940, eff. Sept. 1, 1941.
Question: In what instances is the defendant entitled to the opening and closing argument?
Answer: This question is answered by Rules 266 and 269. These rules provide that the plaintiff shall have the right to open and close the argument, except (1) where the burden of proof on the whole case under the pleading rests upon the defendant, or (2) where the defendant has the burden of proof on all matters which are submitted by the Court's Charge to the jury, or (3) where the defendant, before the trial commences; files and enters upon the record a written admission that the plaintiff is entitled to recover as set forth in the Petition except insofar as he may be defeated in. whole or in part by the allegations of the Answer constituting a ground of defense upon which the defendant has the burden of proof.
5 Tex. B.J. 95 (1942) reprinted in 8 Tex. B.J. 8 (1945).
(No. 30) Question: Does the inclusion in Rule 266 of the defense of "adverse possession" as one of the illustrative defenses which the defendant may urge after filing an admission to open and close have the effect of overruling the doctrine of Meade v. Logan, 110 S.W. 188 (Tex. Civ. App. 1908), namely, that in trespass to try title action in statutory form a defendant who files such an admission cannot show title in himself by limitations?
Answer: In our opinion, notwithstanding the admission, the defendant can show title by limitation.
In Meade v. Logan, the plaintiff in trespass to try title alleged that he had title at so recent a date that the period of limitation that was pleaded by defendant commenced before the date of the plaintiff's asserted title. The court held that, for this reason, the admission to open and close served to admit title in plaintiff during the period of limitation, and hence, served to admit defendant out of court. The same result, it opined, would follow where the petition merely alleged title in general, without fixing a date. It also held that limitation was not a plea in confession and avoidance, and hence, did not come within the rule governing admission to open and close.
The above holding with respect to the defendant's admitting himself out of court is substantially contrary to part of the reasoning used by Judge Gaines in, Smith v. Traders' Nat'l Bank, 74 Tex. 541, 12 S.W. 221(1889). In this connection the court there said:
"In admitting the plaintiff's cause of action ‘except insofar as it might be defeated by the facts of the answer,' etc., he does not purport to admit the allegations of the petition, but merely to admit that the plaintiff has a prima facie case, and expressly declines to admit any fact inconsistent with the new matter alleged in his answer."
In our opinion, Rule 266 puts this reasoning into effect, with the following language:
"The admission shall not serve to admit any allegation which is inconsistent with such defense."
Consequently, in a case like Meade v. Logan, while the admission would now make a prima facie title in the plaintiff, it would not admit that title as of such a date as to defeat the defense of limitation.
The other part of the holding of Meade v. Logan is in our opinion answered by the following language of Rule 266:
" ... which defense shall be one that defendant has the burden of establishing, as for example, and without excluding other defenses: accord and satisfaction, adverse possession, arbitration and award, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, release, res judicata, statute of frauds, statute of limitations, waiver, and the like."
It will be seen that the rule takes all emphasis away from the idea of "confession and avoidance," and rests the new test upon "burden." Among the examples given is this very plea of adverse possession and others that are not strictly in confession and avoidance but that nevertheless leave the defendant with the burden, for instance, estoppel and fraud.
We consider that under the rule as now worded the admission to open and close will not have the effect that is given to it in Meade v. Logan.
5 Tex. B.J. 169 (1942) reprinted in 8 Tex. B.J. 14 (1945).