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 by either party with reference to the motion. It was urged that these facts established a submission of the motion to the court on the part of the relator herein as a matter of law. We cannot agree to this proposition. The action taken by the court in continuing the hearing of the motion to a later day, no argument having been made by counsel for the relator, would strongly indicate that the whole matter was left open, not only as to the plaintiff in the action, but also as to the defendant, the relator in this proceeding. If these facts conclusively established that the counsel for the relator on the 12th of September, informed the court that, while it might be disposed to continue the hearing of the motions so far as plaintiff was concerned, he desired then and there, on his part, to submit the motion on behalf of the defendant, then it might well be claimed that the motion was in fact submitted by the defendant, and that, therefore, the court was bound to decide it whether the plaintiff ever appeared or not, as he was in default in failing to appear at the time-specified in the notice of motion. But what took place is entirely consistent with the whole matter being left in the same condition as though the adjourned day (September 21st) was the first day set for the hearing, and as though nothing was done with respect to the motion except to postpone the argument and submission of it, as is frequently the case. It is true that the counsel for the relator asserts that the motion was submitted on September 12th, but this may be his conclusion from the facts already referred to. We feel constrained to put this construction on his statement because he nowhere details any additional facts which would tend to show an actual submission on his part. Probably, in the absence of any positive evidence that there was no submission of the motion, we would regard his statement as one of fact, and not as a mere statement of his inference from other facts. But the learned judge to whom it is insisted that this motion was submitted distinctly and positively asserts that the motion was never at any time submitted to him for decision, and that the papers were never left with him for decision. Whether they were left with him