#### RAND, Appelant, *v.*KIPP et al., Respondents.

(No. 1,463.)

(Submitted May 7, 1902.

Decided July 28, 1902.)

*New Trial*—- *Newly Discovered Evidence*■ — • *Due*Diligence— *Surprise*— Appeal.

1. Where the evidence was conflicting, and the trial court, in mak'ng an order for a new trial, excluded from its consideration the question of its insufficiency, such conclusion will be accepted without a re-examination on appeal.

2. Where defendant’s affidavits in support of a motion for a new trial for newly discovered evidence in a suit for a balance of account merely stated that due diligence had been used, and it appeared that an inquiry of his codefendent, or an examination of the firm books in his possession, which he said he could not find till after the trial, would have apprised him of all the facts alleged to have been discovered, the motion should have been denied, though the evidence itself was material.

3. Where the only evidence of surprise was that defendant did not expect a witness to testify as he did, and the evidence with which he proposed to rebut this witness could have been obtained by due diligence, the motion for a new trial should have been denied.

*Appeal from District*Courti, *Silver Bow County; William*Clancy, *Judge.*

*139ActioN by Robert N. Rand against Louis Kipp and Henry Kipp', co-partners doing business as Kipp Brothers. Judgment for plaintiff, and from an order granting defendants’ motion for a new trial, plaintiff appeals.

Reversed.

*Messrs. McHatton & Goiter,*for Appellant.

*Messrs. Campbell & Parr,*for Respondents.

Surprise at the testimony of a witness is not ground for a new trial unless it can be shown that such testimony w>as not true, or that the evidence to be produced on another trial is such as will probably secure a different result. *(People*v. *Jocelyn,*29 Cal. 562;. *Charterys Estate,*56 Cal. 470; *Pelmas*v. *Martin-,*39 Cal. 555; *Mehan*v. *Chicago, etc. B. Co.,*55 Iowa, 305; *Mayfield*v. *State,*44 Tes. 59; *Hull*v. *Minneapolis St. B. Co.,*64 Minn.-402; *Stellwagen*v. *Life Ass’n of America,*14 Blatchf. (IT. S.) 349; *Allen*v. *Young,*6 T. B. Mon. (Ky.) 136; *De-Florez*v. *Baynolds,*16 Blatchf. (-IT. S.) 397; *Andrist*v. *Union Pac. By. Co<.,*30 Red. Rep. 345.) The object of a bill of particulars is to prevent surprise on the trial. *{Drake*v. *Thayer,*5 Robt. (N. Y.) 694; 3 Ehcy. P. & P. p. 519.) They have not shown by affidavit or otherwise, which it was their privilege to do, upon the hearing of the motion for a new trial, that the facts set forth in the above affidavits are not true.

The general principle is, if the unsuccessful party after the trial of the case, finds new evidence of such character as to convince the court that an injustice has been done, and that a new trial will change the result, he is entitled to a new trial. *(IFeah*v. *Calloway,*7 Price, 677; *Moore*v. *Coats,*35 Ohio- St. 177; *Ley son*v. *Davis,*17 Mont. 220.) It is only necessary for respondent to show that the judgment is unjust and that he has a good defense to' the action or a portion thereof, in order that courts will grant a new trial. *(Hinman*v. *Hamilton Paper Co.,*53 Wis. 169; *Blain*v. *Shaffner,*37 Ill. App. 394; *Hull*v. *Pining,*17 Wash. 352; *Chinn*v. *Taylor,*64 Tex. 385; *Buford*v. *Bostick,*50 Tex. 371; *Stilhvagon*v. *Life AssJn of America-,*14 *140Blatchf. (U. S.) 349.) It is more important that justice be done than that progress be made on tbe calendar. *(Blain*v. *Bhajfner,*31 Ill. App. 384; *Waugh*v. *Suter,*3 Ill. App-. 275; *Souerby*v. *Fisher,*62 Ill. 135; *Mason*v. *McNamara),*57 Ill. 274.)

As to wbat constitutes ordinary prudence, no rules can be laid down as universally applicable, nor is it necessary to1 lay down any rule upon tbe subject as applying. *(Guy*v. *Hanley,*21 Cal. 397.) It is difficult if not impracticable to lay down any precise rule upon tbe subject of new trials; they must depend so much upon tbe nature of tbe controversy, and tbe whole complexion of tbe cause, that no general rule can be laid down without having so many exceptions that it would rather em-barass than- facilitate tbe administration of justice. *(Brevard*v. *Graham,*2 Bibb. (Ky.) 177.)

A decision .of tbe lower court is usually sustained unless tbe abuse of discretion is manifest. It is well said that as a general rule a trial judge is more capable of correctly deciding whether tbe surprise alleged is induced by oversight, inattention or forgetfulness than a reviewing court. Many matters transpire in tbe conduct of a case in tbe court room which it is almost impossible to present in detail to another tribunal, and of all of which tbe trial judge is necessarily observant. *(Green*v. *Bullc-ley,*23 Kan. 130.) And is now a ground in civil and criminal cases in nearly all tbe states, especially of Montana. (See 1171, Subd. 4, Code of Civil Procedure.) A new trial for this cause will often promote justice and relieve a party from a verdict contrary to tbe real merits of tbe case. (14 Ency. Pleading & Pr., pages 791-796; *Ley son*v. *Dams,*17 Mont. 220.)

MR GIIIE'F JUSTICE BRANTLT

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*141quest, with interest from June 1, 1893, for vexatious and unreasonable delay of payment.

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 *142exercise of due diligence in tbe use of tbe means of knowledge in possession of tbe defendant tbe evidence could easily bave been produced at tbe trial. True, tbe plaintiff states tbe contrary, by way of conclusion; but it is apparent tbat seasonable inquiry of' bis codefendant, or an examination of tbe books used in tbe business, and showing tbe transactions between tbe plaintiff and tbe firm] during several years, would bave put bim in possession of all tbe facts now alleged to bave been discovered since tbe trial. Furthermore, tbe suit is for a balance of account, and, tbougb tbe defendant bad ample notice of this, fact, and tbat a proper presentation of his defense would require an examination of tbe firm books, be does not pretend to bave made an attempt to obtain tbem prior to tbe trial; nor does be state any fact to show tbat tbey could not bave been bad at any time be desired tbem. He contents himself by stating tbat be did not know where tbey were, and could not find tbem until after the trial. So far as tbe record shows, tbe books were in bis possession, and be did not consult or produce tbem because be did not think tbey would be of material assistance.

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 *143rebnt tbe testimony so given is tbe same as tbat wbicb is alleg’ed to bave been discovered since tbe trial. Tbis, as we bave already pointed out, could bave been used, bad reasonable diligence been employed to procure it.

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.*