The evidence in this ease is sufficient to sustain a finding that the' goods for the conversion of which the action is brought were taken from the actual possession of the plaintiff. So far as the motion for a new trial was based on the alleged misconduct of the plaintiff, and surprise on the part of defendant, the same consisting in plaintiff’s proceeding with the trial when the cause was called in its order on the calendar, instead of having it set for a day certain, and giving defendant notice of it, as his attorney had agreed with defendant’s attorney to do, it was properly denied, because there was no affidavit of merits.

Order affirmed.