Arnett

After trial in the court below, findings and judgment against the plaintiff were made and filed. The plaintiff, at the opening of his case, offered to read his own deposition taken in another state. Upon objection that the commission issued upon insufficient notice, that the commissioner did not purport to be acting under the commission, and that the interrogatories that accompanied the commission had' not been settled by the court, the court excluded the deposition. This is assigned as error. The plaintiff thereupon moved, without any showing, that the court grant a continuance. This motion was denied. It is claimed that this was an abuse of discretion. The plaintiff then rested his case without introducing any evidence. After judgment the plaintiff moved on affidavit that the court grant him a new trial. The plaintiff himself filed no affidavit on this motion. The only ground urged in support of the motion was that of surprise at the ruling of the court in excluding the deposition and denying a continuance. The motion for a new trial was denied and plaintiff appeals.

Some of the objections to the deposition appear to be grave, yet it is perhaps unnecessary for the court to…