
    Henry A. Feltus vs. Henry Balch and another.
    December 1, 1880.
    New Trial — Surprise.—Order denying a motion for a new trial, made upon the ground of alleged surprise, which ordinary prudence could not have guarded against, sustained.
    Appeal by defendants from an order of the district court for Hennepin county, Young, J., presiding, refusing a new trial.
    
      Benton, Benton é Roberts, for appellants.
    
      Wilson é Lawrence, for respondent.
   Berry, J.

Upon a careful consideration of the affidavits in this case, we are of opinion that the action of the district court in refusing the new trial asked for cannot properly be disturbed. The case had, it seems, been twice continued at defendants’ instance; so that it was reasonable to expect that the plaintiff would have it brought on for trial at an early •opportunity. We discover no reason for supposing that the court abused its discretion, or was arbitrary or oppressive, in setting the case down for trial on the third day of the term. This was something which might well be expected to occur, especially in view of the delay which had already taken place. Ordinary prudence required that the defendants should be prepared for such an emergency, and that when the calendar was called at the opening of the term, for the purpose, among other things, of making arrangements for the disposal of the cases, they should be represented by some one who could attend to their case, so that they could be ready'for trial when the day appointed arrived or as soon thereafter as the case was reached.

Order affirmed.  