delivered the opinion of the Court:
It is familiar law that an application to open or vacate a judgment is addressed to the sound legal discretion of the trial court, and that the exercise of such judgment either in granting or refusing the application will not be disturbed on appeal unless it is clear that there has been an abuse of discretion. Meyers v. Davis, 13 App. D. C. 364; Magruder v. Schley, 17 App. D. C. 227; 23 Cyc. Law & Proc. p. 895; 15 Enc. Pl. & Pr. p. 281.
The question, therefore, presented, is whether there has been such an abuse of discretion in this case as to warrant this court in entertaining the appeal. The appellant bases her contention that the motion to set aside the judgment should have been granted upon facts alleged in certain affidavits which are printed in the record. There is no bill of exceptions. These affidavits are not referred to in appellant’s motion, and there is nothing in the record to show that they were before the court when the motion was denied. The order of the court denying the motion makes no mention of them. Even if we should assume, which we are not at liberty to do, that these affidavits were before the court, the appellant would be in no better position because we could not assume that other evidence fully warranting the conclusion reached was not before the court. Hart v. Hines, 10 App. D. C. 366.
There being nothing in the record showing an abuse of discretion by the trial court in overruling appellant’s motion, the judgment is affirmed with costs. Affirmed.
A motion for a rehearing was denied February 2, 1909.