27 Mont. 138 | Mont. | 1902
delivered tbe opinion of tbe court.
Action by plaintiff to recover of tbe defendants, as copart-ners under tbe firm name of Kipp Bros., tbe sum of $485, alleged to be due upon a balance of account for beef cattle sold and delivered to defendants at their special instance and re
Defendant Louis Kipp suffered judgment by default. Defendant Henry Kipp answered, denying specifically all the aver-ments of the complaint. There was a verdict for the plaintiff for the amount claimed, with interest, and judgment was entered accordingly. The defendant applied for a new trial, basing his motion upon newly discovered evidence, surprise, insufficiency of the evidence to justify the verdict, and errors of law at the trial, and exceptions thereto duly reserved. The court granted the motion, basing the order expressly uxion the grounds of newly discovered evidence and surprise. Plaintiff has appealed.
As the court, in making the order, excluded from its consideration the question of the insufficiency of the evidence to justify the verdict, thus impliedly refusing to grant a new trial on that ground; and as it appeárs that there is a substantial conflict in the evidence, and that it was therefore not incumbent upon the court, in the exercise of its discretion, to grant the motion on that ground, we shall accept the conclusion of the court thereon, and not undertake to- re-examine the evidence. (Menard v. Montana Central Railway Co., 22 Mont. 345, 56 Pac. 592; Kauffman v. Maier, 94 Cal. 269, 29 Pac. 481, 18 L. R. A. 124.)
Of the two errors of law assigned, it is sufficient to say that they are wholly without merit, and furnish no justification for the order.
We shall not undertake to set out and analyze the affidavits presented to show newly discovered evidence and surprise. They have reference to certain entries upon the books of the firm of Kipp Bros, in 1892, which were made by the bookkeeper employed by them at that time. The defendant claims that these entries show conclusively that the principal item in the account in action was canceled in 1892. Conceding that the evidence is material, and that it meets all the other requirements necessary to make it sufficient to move the discretion of the court to grant a retrial of-the issues in the case, the affidavits show that by the
Courts act cautiously upon such applications, and in order to obtain relief tbe moving party is bound to rebut tbe presumption tbat the verdict is correct, and to make out a prima facie showing tbat be exercised due diligence in tbe preparation of bis case. (14 Enc. PL & Prac. 790, 791.)
Tbe same rule applies with equal force to tbe ground of surprise. Tbe matter of surprise is alleged to bave been tbe testimony of Louis Kipp', who dealt with tbe plaintiff in tbe transactions in controversy. He testified tbat be purchased a large part of tbe cattle in 1892, and tbat tbe firm bad not been dissolved in December, 1893, as was claimed by tbe defendant. Tbe defendant says in bis affidavit tbat be could not rebut this testimony at tbe trial, and therefore allowed tbe bearing to proceed to tbe end. Tbe record does not reveal a suggestion of surprise, or tbat tbe defendant sought a continuance in order to enable bim to meet tbe testimony so given. Tbe only evidence presented upon this point is that be did not expect bis brother to testify as be did, and tbe evidence with which be proposed to
It was therefore an abuse of discretion in tbe trial court to vacate tbe finding of t-lio jury, and to allow a re-examination of tbe issues upon tbe showing made. Let tbe order be reversed at tbe costs of respondent.
Reversed and remarided.