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.