
    Holt v. Smith.
    1. Presumptions in payor op the ruling below. When, the ruling of the court below, which is assigned as error, was made under a rule of the court which does not appear in the record, it will be presumed that such ruling was correct.
    2. Pleadings: answer. Affirmative allegations in an answer, unde-nied by a replication, will not be taken as true, while a motion to reject is pending.
    3. Appearance term. It was not error to render judgment at the first term after the commencement of an action, under chap. 127 Laws Seventh General Assembly, when no application for a continuance was made by the defendant.
    
      Appeal from Scott District Court.
    
    Thursday, October 20.
    ACTION to recover rent due on a written lease. The defendant answered that the plaintiff was to make repairs, and do certain work on the premises, which was a condition precedent to the lease taking effect, and that he did not perform in this respect. The plaintiff’s attorney filed an affidavit, alleging that the action was upon a written evidence of indebtedness, that the defendant himself undertook to finish the house and was to be allowed for it in his lease; that he had presented his account, and had been allowed and cred-. ited for the same, and that the defence interposed was not in good faith, as he believed, but was made for delay.
    Under a rule of the court which is not set out, nor the ' substance given, the court struck out the answer, and the defendant then being called, and not answering, judgment of default was rendered, and the cause being upon a money demand, by order of tlie court, tlie clerk assessed the dama-ages, and judgment was rendered therefor. The defendant appeals.
    
      Davison 8¡ True, for the appellant,
    relied upon chapter 127 Laws of the Seventh General Assembly, -Pamphlet Laws 1858 page 249; Code of 1851, section 1824, and Rhodes v. De Bow, 5 Iowa 260.
    
      James Grant, for the appellee.
   Woodward, J.

As the rule under which the court appears to have acted is not set out, nor the substance given, we are not able to determine whether there is error in the rejection of the answer. The presumption is that the court acted correctly. The want of a replication cannot, as contended by the defendant, have the effect of causing the answer to be taken as true, whilst the motion to reject is pending.

The defendant then assigns as error the rendition of judgment at the October term, 1858, he claiming that the cause came under the act of 22d March, 1858, (Acts 1858, page 249,) and should have been continued one term. That was the first term after the commencement of the action. We have held in several cases, that the party should ask for a continuance, and that this will not be ordered, as of course, without motion.

The judgment is affirmed.  