This was an action, under the statute, by the appellee against the appellant, to recover the value of a mare alleged to have been killed by the locomotive and cars of the appellant.

There was issue, trial by the court, finding for appellee. The appellant’s motion for a new trial was overruled, and *391sixty days were given in which to file a bill of exceptions embodying the evidence. There is a bill of exceptions in the record, but it is not shown that it was filed within the time limited, and for that reason we can not regard the evidence as in the record. The only assignment of error is based upon the action of the court in overruling the motion for a new trial. Inasmuch as the evidence is not properly before us, we can not pass upon its sufficiency to support the verdict.

The judgment is affirmed, with ten per cent, damages and costs.