King v. Kinney

It appears, that upon the application of the plaintiff to the court, to vacate the order by which the judgment of affirmance was rendered, the court heard the statements of the plaintiff and his attorney. These statements are not embodied in the record, and it is not in our power to say, that they were insufficient to justify the action of the district court. They must be taken to have been sufficient, as the contrary is not made to appear. The court had the power to vacate the order, at any time during the term. (Code, section 1579), and, when vacated, the cause stood *522upon the defendant’s motion, sustained by his affidavits, to set aside the judgment by default. As it does not appear to us, that the district court improperly exercised the discretion vested in it, in refusing to set aside the judgment by default, upon the affidavit filed, the judgment of the district court is affirmed.