Rand v. Kipp

• Decision Date: 28 July 1902
• Citation: 69 P. 714,27 Mont. 138
• Parties: RAND v. KIPP et al.
• Court: Montana Supreme Court

69 P. 714

27 Mont. 138

RAND v. KIPP et al.

Supreme Court of Montana

July 28, 1902

Appeal from district court, Silver Bow county; Wm. Clancy, Judge.

Action by Robert N. Rand against Louis Kipp and another. Judgment for plaintiff, and from an order granting defendants' motion for a new trial, plaintiff appeals. Reversed

McHatton & Cotter, for appellant.

Campbell & Parr, for respondents.

BRANTLY C.J.

Action by plaintiff to recover of the defendants, as copartners under the firm name of Kipp Bros., the 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 request, 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 averments 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 of justify the verdict, and errors of law at the trial, and exceptions thereto duly reversed. The court granted the motion, basing the order expressly upon 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 appears 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. Railway Co., 22 Mont. 345, 56 P. 592; Kauffman v. Maier, 94 Cal 269, 29 P. 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 exercise of due diligence in the use of the means of knowledge in possession of the defendants the evidence could easily have been produced at the trial. True, the...