Pardy v. Montgomery

Thornton, J. We cannot take notice of the affidavits in the transcript, showing, as claimed by the appellant, the circumstances under which this action was dismissed " by the court below, for the reason that it is not shown in any mode that such affidavits were used on the hearing of the application in that court. The court below had power to dismiss the action for want of prosecution (see Code Civ. Proc., sec. 581), and there being no showing to the contrary, we must presume that the court below exercised its power properly and within the rules prescribed by law. Judgment affirmed. ' Searls, C. J., Works, J., Paterson, J., and Sharp-stein, J., concurred. Rehearing denied.