
    MARSHALL vs. BUCHANAN.
    
      Fourth Judicial District Court,
    July, 1857.
    Motion to Open Judgment.
    Under what circumstances the Court may refuse to open a judgment where the application was made on the ground of surprise.
    If the affidavits upon such motion show a discrepancy in the facts, the Court will not open the judgment.
    Motion to vacate judgment, and for leave to come in and defend upon the answer filed. Judgment was entered on verdict in favor of plaintiff, on the 11th Juné, for $400, value of certain cattle found to be wrongfully taken by defendant. The trial in this Court was ex parte, there being no appearance for defendant, hut an answer to the complaint was put on file. Defendant deposes now, that, having heard a suit was commenced against Mm, he called upon the counsel who appeared, and on whom the process was served, and learned that he had put in an answer. Defendant, in a conversation with him, which resulted in an admission of the mistake made, went away supposing no other proceedings would be had until personal service of process was made on him, and therefore the trial was a surprise against which he could not have prepared.
    In opposition, plaintiff’s counsel read his own affidavit to the effect that, on the day he commenced tMs action, and wMle the clerk waá preparing the papers, he casually met defendant and his attorney in company, and informed Buchanan that he had instituted a suit against Mm for the cattle. Defendant’s attorney said that he need not go to the trouble of sending the Sheriff to serve the papers, but might leave them at Ms office. To this proposition Buchanan expressly assented.
    Tingley, for plaintiff
    
      Gf. F* James, for defendant.
   Hager, J.

did not tMnk the application addressed itself to favorable consideration on the ground on which it was presented. Reference to the affidavits filed showed a discrepancy as to the facts, and did not disclose sufficient cause to open the judgment; those in support of the motion being equivocal, and that on the part of the plaintiff positive in averments.

Motion denied.  