The opinion of the Court was delivered by
Fenner, J.The first question to be disposed of in this case is the claim of appellant to have the cause remanded to be tried over again on the ground that the judge a quo improperly refused a continuance oí the case on the day fixed for trial, and tried the case when the only-counsel of defendant was unavoidably absent, engaged in the actual trial of a cause in another court.
AVearenot prepared to say that if the facts alleged were proved,, and in the absence of explanatory circumstances to justify the action of the judge, such a refusal to grant a continuance would not afford proper ground for relief in this Court. But we must take the record as we find it, and can only predicate our action on what appears therein.
This record contains nothing to establish the state of ease upon which appellant’s claim for relief is founded.
Nothing appears connected with the taking up of the ease for trial except the simple entry that “ Chas. S. Rice, for defendant, did not appear.” There is no statement of any application for continuance or refusal thereof.
*644In the rule for new trial, it is true, the facts above set forth are stated as one of the grounds ; but, though the affidavit of the defendant is attached to the rule making oath to the truth of certain facts therein, it does not include these. The rule was regularly fixed for trial. On the day fixed, the entry shows that the counsel for defendant was again absent.
No testimony was taken, and the rule was .submitted, and was decided simply as follows : “The Court seeing no reason to change its opinion herein as heretofore expressed — it is ordered that said rule be dismissed.”
Pacts averred in support of an application for new trial must be •either admitted, or proved, like any other facts. They cannot be taken as established by merely being alleged in pleading.
All the circumstances were necessarily within the personal knowledge of the judge, and, in the absence of positive proof to the contrary, we are bound to assume that he exercised the discretion in him vested properly.