I am unable to agree with that part of the majority opinion which holds that the trial judge's erroneous ruling refusing to allow appellants the seven days given them by KRS 122.080 to introduce evidence in rebuttal was not prejudicial. These seven days are given them by statute and certainly the trial judge had no right to arbitrarily close the case without allowing them this time merely because the attorneys representing appellants did not then know whether they would introduce evidence in rebuttal. The statute gave them seven days to determine this question. They had until the seventh day to decide whether they would introduce proof in rebuttal and they had the right on that last day to do so, provided they finished with their rebuttal evidence on the seventh day.

It will not do to say that appellants were not prejudiced because they did not move the court to set aside his order and allow them to introduce proof in rebuttal. The court had erroneously taken from appellants a right given them by statute and there was no duty or obligation upon their part to ask him to set aside the order — they had the right to rely upon the statute, and that is what they did.

The majority says the court always has the right to exercise its judicial discretion in the conduct of trials and that KRS 122.080 provides that in this character of case the judge shall proceed without delay. With this I agree. But I do not agree that it is an exercise of judicial discretion when a court refuses to give a litigant the time allowed by statute in presenting his evidence. To proceed without delay does not mean to deprive a litigant of a statutory right. I cannot imagine an act of a court to be more arbitrary than a ruling which says to a litigant, "The statute gives you seven days to present your rebuttal proof but when you tell me at the close of your opponent's case you do not know whether you have anything in rebuttal to offer, I say the case is *Page 405 closed and you have lost your right regardless of the fact the Legislature says you may have seven days." When a ruling of the trial judge deprives a party of the time given him by statute to present his case, such party has been prejudiced in his substantial rights.

For the reasons given, I most respectfully dissent.