
    KATE ALLEN, Respondent, v. BENJAMIN AYLOR, Appellant.
    Kansas City Court of Appeals,
    February 27, 1905.
    1. APPELLATE PRACTICE: Bill of Exceptions: Record: Affidavit. The record proper must show the filing of a bill of exceptions within the time granted and the extension of such time cannot be shown by affidavit or recital in the bill itself.
    2. -: Answer: Abstract: Brief. Though the record shows an answer which is sufficient to defeat, the action is uncontroverted, yet where it also appears from the record proper as well as appellant’s brief that the trial proceeded on the assumption that the facts alleged in the answer were in issue the appellate court will so'treat it.
    Appeal from Jasper Circuit Court. — Hon. Hugh Dabbs, Judge.
    Affirmed.
    
      F. L. Forloto and Howard Gray for appellant.
    Piled brief on merits.
    
      Thomas Dolan for respondent.
    Piled brief on merits.
   JOHNSON, J.

The record shows the bill of exceptions in this case was not filed in proper time. In the order allowing the appeal the court granted defendant until the first day of the October term (October 3d) of court, 1904, within which to file his bill of exceptions. No order of extension was made and the bill was not filed until October 15th. The affidavit of one of the attorneys of defendant that an order of extension was in fact made cannot be considered. The record imports absolute verity. State v. Blunt, 110 Mo. 322. Nor will the fact that such order of extension appears in the bill of exceptions be received to contradict the record. The latter controls. This leaves nothing for us to consider hut the record proper.

Defendant in his answer pleaded facts which if' true precluded a recovery. It does not appear from the abstract that this answer was controverted by a reply, but there is enough before us in the record proper, as well as in the statement, brief and argument of defendant’s counsel, to show the case was tried upon the assumption that the facts alleged in the answer were in issue. We will so treat it. Holke v. Herman, 87 Mo. App. 132.

No error appears in the record proper and the judgment must therefore be affirmed.

All concur.  