
    Wolfe v. Pruitt.
    An application for a new trial on the ground of surprise, will not be listened to, unless the party applying shall have used due diligence.
    APPEAL from the District Court of the Parish of Morehouse, Copley, J.
    
      McGuire and Ray, for plaintiff.
    
      Robertson and Boatner, for defendant.
   By the court:

Slidell, J.

The evidence upon which the cause was tried not being presented by the transcript, we are unable to say whether, on the merits, the judgment was erroneous.

An application was made for a new trial, on the ground, supported by affidavit, that the defendant was surprised in not being permitted to take interrogatories propounded to plaintiff, as confessed; the clerk, as is asserted in the affidavit, having neglected his duty as to issuing copies of the order to answer, &c.

The defendant obtained an order to answer in April, 1851. In November he filed an application to have the interrogatories taken, as confessed. But he does not appear to have required the action of the court upon it. No action was had, before the trial, upon the application; nor was any motion made for a continuance, so as to give further time to have service made. After trial and judgment, under these circumstances, the district court may well have considered that there was a want of due diligence, and that the application for relief on the grounds stated, came too late. "We find no sufficient reasons or precedent for disturbing the judgment.

Judgment affirmed, with costs.  