delivered the opinion of the court.
This is an appeal taken by plaintiffs from an order granting the defendant’s motion for a new trial. The plaintiffs commenced an action to recover a sum of money from the defendant. On the 10th day of March, 1898, the defendant answered, making certain denials, and attempting to’ set up certain counterclaims; thus seeking to recover of plaintiffs a total sum largely greater than th$ amount sued for by the plaintiffs. On the 4th day of May, 1898, the defendant filed its praecipe, asking for default of reply to the counterclaims, and the clerk, in pursuance of the demand, • entered the' default. On May 9, 1898, the plaintiffs filed a reply to the counterclaims, denying each of the allegations of the answer. On May 11, 1898, the defendant filed its motion to strike the reply from the files, because not filed in time, which motion was afterwards granted, plaintiffs excepting. The cause was by consent referred to a referee to make and report findings of, fact. . .Proof was made *180by the plaintiffs, and the referee found for them on their claims in the sum of $1,308.83. No proof w>as made by the defendant in support of its counterclaims; it, as is now claimed, depending upon the default of plaintiffs. Plaintiffs and defendant severally moved the court to adopt the findings of the referee and for judgment. The court adopted the findings, and, declaring that only three of the counterclaims of the defendant stated, severally, causes of action, the day after finding for the plaintiffs entered judgment for them in the amount claimed and proved by the plaintiffs, and for coste, less the amount of the sufficiently pleaded counterclaims, and $30 penalties, levied upon the plaintiffs as costs upon overruling certain motions.
Thereafter the defendant moved the court for a new trial, the principal ground, and the only one, really urged by counsel, b^ing that the court below “changed front,” as the court’s action was styled in Newell v. Meyendorff, 9 Mont., at page 262 (23 Pac. at page 334, 8 L. R. A. at page 442, 18 Am. St. Rep. at page 742), and thereby, as the judge declared in giving his reasons for granting a new trial, the defendant was surprised to its damage; and defendant further claims that this surprise was such as ordinary prudence could not have guarded against.
There is nothing properly in the record to show that the court at any time before judgment held that the answer was bad for substance in respect of any counterclaim. The court’s opinions cannot be looked to to determine what was done or not done in the case. The defendant’s bill of exceptions does not in any wise refer to any action or decision of the court upon any motion or demurrer relating to the answer. In the specifications of error submitted to the court in connection with the bill of exceptions used on motion for a new trial, one ground is that the court “erred in finding for plaintiffs upon motion for judgment for defendant in holding certain counterclaims insufficiently pleaded, when the court had previously before trial held the same good against a motion to strike them out of the answer,” and that the court erred in “ordering judgment for plaintiffs without referring the cause to the referee for a *181new trial, and allowing defendant to anlend its answer, by reason of tbe fact that tbe pleading of tbe counterclaim [s] had all been held good by tbe court before tbe cause was referred to tbe referee, and no legal right existing whereby an amendment might be by the referee allowed.” But there is no statement in tbe bill of exceptions to show that any such motion (or demurrer) attaching tbe answer was made, submitted, or decided. It appears that at tbe time of tbe making of tbe order made and signed July 28, 1898 (tbe day before tbe judgment was rendered), tbe courts in adopting tbe findings of tbe referee, ordered “that judgment be entered in favor of plaintiffs in tbe sum of $996.95 and costs, credited by defendant taxed costs for ‘ overruled motions against plaintiffs herein,” and filed “a memorandum of opinion,” in which tbe judge stated that no objection was made to tbe findings of tbe referee, and that “tbe only questions that remain are in determining tbe sufficiency 1 of tbe counterclaims,” and that “it is urged by defendant that inasmuch as plaintiffs failed to interpose a demurrer, that now, after default, they cannot object to tbe pleading if it falls short of stating a cause of action.”
On November 11, 1898, tbe judge signed, settled, and allowed a bill of exceptions on motion of plaintiffs, in which there appears an opinion of tbe judge, with argument and authorities to support the reasons of tbe court why it believed that tbe defendant bad been surprised by certain action of tbe court, which action is, after the granting of tbe motion for a new trial and in tbe so-called bill of exceptions of plaintiffs, referred to in tbe following language: “Subsequently to tbe filing of its answer by tbe defendant tbe plaintiffs appeared, after notice to tbe defendant, and moved tbe court to1 strike out each of tbe six demands set out in defendant’s answer- as counterclaims, upon tbe grounds that tbe same were sham, irrelevant, indefinite, uncertain, and did not state facts sufficient to constitute a cause of action or defense. Each said demand and counterclaim in defendant’s said answer was by said motion sought separately to be stricken out. After argument tbe said motion *182was submitted, and vthe court denied said ■ motion upon the theory that the said matter sought to be stricken out, if defective, should have been assailed by a general demurrer to each •counterclaim, and that the remedy was not by motion to strike out. I am of the opinion that, as to three of said demands, said motion should have been sustained.; (Lomme v. Kintzing, 1 Mont. 290; Sands v. Maclay, 2 Mont. 35; Smith v. Davis, 3 Mont. 109; McMahon v. Thornton, 4 Mont. 46, 1 Pac. 724; Dodson v. Nevitt, 5 Mont. 518, 6 Pac. 358.) Afterwards said cause was referred to Fletcher Maddox to hear the testimony, and find facts and report the same to- the court; which was done; and thereupon the cause was submitted to the court upon pleadings and findings of the referee, and judgment was rendered in favor of the plaintiffs, disallowing the three said counterclaims heretofore referred’to, and which are specifically set out in the ruling of the court thereon, heretofore made, and were disallowed upon the ground that they each failed to- state a cause of action. I am of the opinion that the ruling of the court in denying said 'motion to strike out, and subsequently disallowing said counterclaims, was a surprise to the defendant, within the meaning of ” Subdivision 3 of Section 1171 of tbe Code of Civil Procedure, and such a surprise which ordinary prudence could not have guarded against; no reply having been filed, and the default of the plaintiffs on said counterclaims having been entered of record, no evidence was received or offered in support of said counterclaims, and the defendant, perhaps, had the right to .assume that, said motion to strike! out- having beeal denied, ‘ .his counterclaims were sufficiently well pleaded. (Monson & Valentine v. Cooke, Kenney & Co., 5 Cal. 436; Carpentier v. Small, 35 Cal. 362; Hartson v. Harding, 40 Cal. 267; Tennant v. Pfister, 45 Cal. 272; Hayne on New Trial and Appeal, Sec. 37.)’’
Although we may not consider the opinion of the court below, j — only -its acts, and not its reasons, being properly part of the record to be brought to this court on appeal,- — still when, as in this cáse, it is submitted by all parties in their briefs that the *183acts referred to in tbe opinion last above quoted were done at-tbe time and in tbe manner stated by tbe judge, it is not improper or illegal for us to assume tbem to bave been done as stated; and tbe opinion of tbe judge, while in no wise to be considered as any part of tbe case, having, however, been submitted to us without objection, it may, not unwisely, be read and considered by us as possibly suggestive of what may be tbe just and lawful determination of this appeal. The question-to be decided is a close one. New trials are statutory. If granted, they must be granted upon statutory grounds, and none other. (Ogle v. Potter, 24 Mont. 501, 62 Pac. 920.)
Tbe record is obscure in many places, very redundant in others, and absolutely wanting in most important points. If it were not for tbe fact that tbe briefs submit to this court'' matters as part of tbe case which do not appear in tbe record, it would be impossible to tell what were tbe grounds on which bearing of motion for a new trial was bad. It is certain from the record and tbe concessions contained in the briefs of tbe parties, taken together, that the court bad submitted to it and argued before it, on the bearing on motion for a new trial, the fact that, pending answer, it bad denied the motion to strike certain counterclaims in tbe answer, tbe ground of such motion being as hereinbefore set forth, and tbe claim of tbe defendant that such denial was an assurance to- it that tbe court held tbe answer good in all its counts for substance, and that the “chang’d of front” by tbe court, after adopting tbe report of the referee, in that it suddenly, and without notice to- tbe defendant, held the answer bad in several counts, and ordered judgment for tbe plaintiffs, was accident and surprise, which ordinary prudence could not have guarded against, and on account of which a new trial should be granted. Tbe court granted a new trial upon tbe ground of accident and surprise. If we bold that’ counselors and attorneys are presumed to- know tbe law at their peril, and that equally, at their jeopardy, they accept as law and worthy of safe dependence tbe decisions of tbe court in the proceedings of a cause, then, of course, there is here and now *184an end of tbis discussion. But sucb bas not been tbe view of tbis court, as appears by a perusal of tbe opinion of Mr. Justice DeWitt in Newell v. Meyendorff, supra. Tbe injured party must bave a remedy. Where is it ? Tbe motion to strike, conceded to bave been made, although called a motion, was also a demurrer, notwithstanding tbe fact that the court in tbe bill of exceptions of tbe plaintiffs declared that a demurrer bad not been filed, tbe court probably, in its discretion, without notice to tbe de^ fendant, having ruled on tbe motion as though it were a mere motion to strike, and declining to consider tbe motion as a demurrer, it not being in form a demurrer, though sucb in substance and effect. Tbis motion attacking tbe .answer for want of substance was overruled. Was not tbe decision of tbe court in tbis denial to be relied upon until tbe court should reverse its ruling? Then why should, in common justice, tbe defendant be mulcted for depending upon tbe wisdom, and consistency of tbe court? (Jeffree v. Walsh, 14 Nev. 143.)
Was not tbe act of tbe court in thus misleading tbe defendant a statutory ground for a new trial ? Tbe court, discovering, its error, should bave informed tbe defendant of tbe mistake, and, pending action upon tbe motions to adopt tbe findings of tbe referee, bave given tbe defendant a chance to amend its answer upon terms, if it saw fit to do so, and, if the defendant amended its answer, then the matter should bave been sent back to tbe referee for further proceedings before him under the court’s order to make findings. But tbe court did not do- tbis. It granted tbe motion of plaintiffs to adopt tbe findings of tbe referee in favor of tbe plaintiffs, and then gave judgment for them. Afterwards tbe court, upon motion, seeing its error, hastened to. make amends in tbe interest of justice. All of tbe cases mentioned herein, as well as. tbe text writer Hayne on New Trial and Appeal, tend to support tbe opinion of District-Judge Leslie in bis view that bis act was sucb an accident or circumstance happening in the case as prevented tbe defendant getting justice on tbe trial. Defendant was induced by tbe *185■court not to introduce any evidence before tbe referee to- support its claims set up or attempted to be stated in tbe answer. Tbis .appears from tbe affidavits of counsel, wbicb affidavits were used on tbe bearing, as is admitted by counsel. Failure to introduce evidence on tbe trial in tbis case after default of reply to tbe counterclaims, was tbe direct consequence of tbe action of tbe court in making an erroneous ruling declaring tbe answer good. Was not tbe error of tbe court, resulting from tbe motion of tbe plaintiffs, sucb an act as was extraneous to tbe defendant, and one entering into tbe proceedings of tbe trial, in tbat it put before tbe referee and kept before bim an answer and an order of default of reply thereto, and wbicb, iff effect, told tbe referee tbat be need not take any testimony in support of tbe claims of tbe defendant, and tbat tbe latter need not offer any ? We think so. Then it was an error wbicb could be considered on motion for a new trial. It prevented a fair trial.
It rarely happens tbat sucb a concatenation of circumstances is presented to a court of last resort as appears herein, there being important omissions from tbe record uncomplained of, obscure specifications of alleged error, concessions in briefs of facts omitted from tbe record, and unusual error of tbe court below, with an honest desire to correct and remedy it in a way-difficult to review and involving very close questions of procedure and practice. In a case with so poor a record, uncom-plained of by appellants or respondent, in respect of important faults, and raising so close a question to be determined, it seems to be tbe duty of tbis court to affirm the action of tbe lower court in granting a new trial, especially when it is so apparent; tbat tbe court 'granted it because it bad done tbe judgment debtor an injustice. By suggestion rather1 than by positive declaration tbis court in Newell v. Meyendorff, supra, indicates tbat tbe point herein considered can be raised and determined on appeal from an order granting or refusing a new trial.
In view of tbe very close questions before us to decide, tbe writer of tbis opinion is not willing to have tbis case considered as a precedent except for sucb a case hereafter appearing as *186may be identical in all particulars with, tbe one herein treated.
Tbe order granting a new trial' i's affirmed.
Affirmed.
Me. Justice Pigott:Tbe arguments in support of tbe order appealed from and tbe arguments against it seem to me to be of equal legal force. Of course tbey are not. But to my imperfect mental vision tbe reasons wbicb may be urged upon tbe one side are as strong as, but no stronger than, those wbicb may be advanced upon tbe other, — they are of equal weight and tbe scales are in equipoise. Not being satisfied that tbe court below erred in granting a new trial, I concur in tbe judgment of affirmance.