
    King v. Kinney.
    Where it does not appear that the district court has improperly exercised the discretion vested in it, in refusing to set aside a judgment by default, the judgment must be affirmed.
    
      Appeal from the Dubuque District Court.
    
    Saturday, June 11.
    The docket fee, on the appeal from the justice, not having been paid, the plaintiff moved the court to affirm the judgment ; and the court being satisfied in the premises, affirmed the judgment, in accordance with a rule of court. After-wards, on the application of the defendant, sustained by affidavit, the court set aside the judgment of affirmance, the defendant paid the docket fee, and the cause was moved to be continued until the next term of court. This was on the 29th of June. On the subsequent 21th of July, the court on the application of the plaintiff, set aside the order of continuance entered in the cause, vacated the order setting aside the judgment of affirmance, and again affirmed the judgment of the justice. Prom this latter order and judgment of the district court, the defendant appeals.
    Samuels, Allison db Crane, for the appellant.
    
      H. T. Utley, for the appellee.
   Stockton, J.

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 upon 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.  