
    George W. McCoid, Appellee, v. Patrick Rafferty et al., Appellants.
    Bill of Exceptions: time of filing. A bill of exceptions, filed the-next day after the expiration of the time agreed upon by the parties to a cause for the'filing of such bill, will not entitle an appellant to a. review in the supreme court of errors based upon the evidence.
    
      Appeal from Shelby District Cowrt. — Hon. N. W. Macy,. Judge.
    Wednesday, February 3, 1892.
    Action at law upon a promissory note and account.. An attachment was issued, and two mules, which were found in the possession of Rafferty the defendant were-attached as his property. Patrick White intervened, and claimed that he was the owner of the mules. The right of property in the mules was tried to a jury, and there was a verdict for the plaintiff. The intervenor appeals.
    
    Affirmed.
    
      Smith & Oullison, for appellants.
    
      IL. W. Byers, for appellee;
   Rothrock, J.

The defendant Rafferty did not appear in the action and did not defend. The whole •controversy was as to whether White was the owner of the mules. If he was not the owner, they were the property of Rafferty, and were rightfully attached. It appears from the abstract filed by the appellants that the evidence was sufficient to sustain the verdict, and we think there was no prejudicial error in the instructions. But we are precluded from considering the evidence and the rulings thereon. The appellee filed an abstract in which the following statement is made: “Appellee denies that the evidence in this case was preserved by bill of exceptions, as required by law. The record shows that the intervenor was to have, by agreement of parties, sixty days from March seventeenth in which to file his bill of, exceptions; that on May seventeenth, sixty-one days thereafter, a bill -of exceptions was filed.” The appellant does not deny or take issue with this averment of appellee’s abstract, and we are required to accept it as true. The cause was fried in the year 1890, and the sixty days expired on the sixteenth day of May of that year. The case is within the rule of Manning v. Irish, 47 Iowa, 650.

As the merits of the appeal are based upon the evidence, the judgment of the district court must be . AFFIRMED.  