Kenezleber

This is an appeal by the defendant from an order granting plaintiff’s motion for a new trial on the grounds of newly discovered evidence, and of surprise at the trial.

The action was brought by plaintiff on a promissory note executed to him by the defendant for $1,080. The answer contains a general denial of the allegations of the *206 complaint, and sets up, by way of counterclaim, plaintiff’s indebtedness to defendant in the sum of $1,557.88, “ for goods, wares, and merchandise sold and delivered to the plaintiff, and for cash loaned, paid out, and advanced to plaintiff, between the nineteenth day of May, 1886, and the eighth day of October, 1888, upon open, current, running, and mutual account by and between the parties hereto.”

The trial of the issues thus joined resulted in a verdict and judgment for the defendant, which the plaintiff moved to set aside and vacate, and to grant a new trial, on the following among other statutory grounds: “Accident and surprise which ordinary prudence could not-have guarded against; newly discovered evidence material for the plaintiff, which he could not with reasonable diligence have discovered.”

The defendant, by way of defense, and in…