                               No. 89-418

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1990




ELLIS A. BRUNNER and GLORIA A. BRUNNER,
Husband & Wife, STEVEN GROSS, LYLE GRENAGER' I
and ALAN DAVIS,
              Plaintiffs and Respondents,
       -vs-
LEO R. LaCASSE and FRIEDA LaCASSE, Husband and Wife,
and HENRY LaCASSE, HELENE LaCASSE
                Defendants and Appellants,



APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable Ed McLean, Judge presiding.


COUNSEL OF RECORD:
         For Appellant:
                Clinton H. Kammerer; Kammerer Law Offices, Missoula,
                Montana
         For Respondent:
                 Richard Buley; Tipp, Frizzell      &   Buley, Missoula, Montana

                                              - -




                                   Submitted on Briefs:         Dec. 7, 1989
                                     Decided:           January 16, 1990
                                          a
Filed:
Justice Diane G. Barz delivered the Opinion of the Court.


     This appeal arises from denial of appellants1 motion for new
hearing or, in the alternative, relief from judgment entered by the
District Court of the Fourth Judicial District, Missoula County,
on remand from an earlier appeal to this Court.       We affirm.
     Respondents brought the underlying action seeking rescission
of a real estate contract. Pursuant to the contract, appellants
transferred undeveloped   agricultural    lots   to    respondents    in
exchange for cash and respondents' equity in a Missoula home.        The
District Court ruled respondents were not entitled to reimbursement
of their equity upon rescission.    We reversed and remanded for a
determination of the value of respondents1 equity in the home.
     Subsequent to   presentation   of   conflicting    testimony    at
hearings held December 16 and 23, 1988, the District Court, in its
January 30, 1989 findings of fact, conclusions of law and order,
found the value of the home at the time of transfer to be
$86,900.00.   Respondents filed a Notice of Entry of Judgment on
March 10, 1989 and mailed a copy of the same to counsel for
appellants.
     On March 23, 1989, appellants moved for a new hearing or

relief from the judgment entered against them based           on the
discovery of new evidence. Appellants discovered documentation of
their sale of the Missoula home to a third party approximately two
years following the transaction from which this litigation arises.
According to these documents, the selling price of the Missoula
home in September, 1981, was roughly $13,000.00 less than the value
found by the District Court.    In its opinion and order dated June
14, 1989, the District Court held appellants1 failed to adequately
establish grounds for either a new trial or relief from judgment.
We agree.
     Appellants' sole specification of error is the District
Court's failure to find the newly discovered evidence warranted a
rehearing on the value of respondents1 equity in the Missoula home.
Section 25-11-102, MCA, provides as follows:
            The former verdict or other decision may be
            vacated and a new trial granted on the
            application of the party aggrieved for any of
            the following causes materially affecting the
            substantial rights of such party: (4) newly
            discovered evidence material for the party
            making the application which he could not,
            with reasonable diligence, have discovered and
            produced at the trial;
Similarly,
            On motion and upon such terms as are just, the
            court may relieve a party or his legal
            representative from a final judgment, order,
            or proceeding for the following reasons: (2)
            newly discovered evidence which by due
            diligence could not have been discovered in
            time to move for a new trial under Rule 59(b) :
Rule 60(b) M.R.Civ.P.
     Clearly, the moving party must demonstrate due diligence in
unearthing the newly discovered evidence before either relief from
judgment or a new trial is proper.    Schilke v. Bean (Mont. 1988),
755 P.2d 565, 568, 45 St.Rep. 930, 933.     We find that appellants
in the instant case were lax in uncovering the evidence in
question.    Appellants1 evidence consists of documents prepared in
the culmination of their sale of this home two years after their
transaction with respondents. However, they sought to glean only
one pertinent fact from that evidence: the selling price of the
Missoula home.   Not only could appellants have obtained this data
from any of a number of other sources, copies of the closing
documents were no doubt available through discovery.
     Appellantst arguments regarding the diligence with which they
pursued this evidence are without merit and we therefore affirm the
ruling of the District Court.   We further award respondents their
attorney's fees incurred in this appeal.




We concur:       /'   5"




        Justices
