Opinion
No. 10859.
Decided June 21, 1965.
Hubert J. Massman, Helena, for petitioner and appellant.
Forrest H. Anderson, Atty. Gen., and Louis Forsell, Helena, for respondent.
See C.J.S., Appeal and Error, § 1842.
Proceeding on motion by relator to remand cause to district court on ground that relator had newly discovered evidence not available when district court made its judgment and that he desired to make and file motion for new trial in district court.
The Supreme Court held that the purported evidence, which consisted of certain actions taken by respondents upon unrelated matter except that relator was party in interest therein, about four months before judgment was made did not entitle relator to remand in absence of prima facie showing sufficient to warrant consideration of the matters raised by district court.
Motion denied.
Relator and appellant has filed a motion to remand this cause to the district court upon the ground that relator has newly discovered evidence which was not available at the time the district court made its judgment on July 7, 1964, and he desires to make and file a motion for new trial in the district court.
It appears from the affidavit of counsel and exhibits annexed to the motion that the purported newly discovered evidence consists of certain actions taken by the respondents on March 3, 1965, upon an unrelated matter, except that relator was a party in interest therein.
We discussed a motion of this type in State v. Nicks, 131 Mont. 567, 312 P.2d 519. What was said there respecting a criminal case would have like effect in this civil matter. There is a marked dissimilarity between this case and the Nicks case. In the Nicks case the defendant made a prima facie showing in this court sufficient to warrant consideration of the matters raised in his motion by the district court; in this case we fail to find any prima facie showing that would warrant this court in remanding the matter to the district court.
The motion to remand is denied.