*414Opinion by

The record of this case discloses the fact that a trial was had in the district court of Allen county on the 8th day of November, 1886, and on the same day the jury returned into court with a verdict for the plaintiff below; a judgment was accordingly rendered thereon. On the 26th day of January, 1887, the court considered a motion for a new trial and overruled the same; the record is silent as to when this motion was filed. The affidavits used upon the hearing were filed on the same-day the motion was heard.

As it does not appear from the record that the motion was filed within the statutory time, and no reason is assigned for the delay, it will be presumed by this court, for the purpose of upholding the verdict and judgment of the district court, that the motion was not filed within the time required by §308 of the code. (Bartlett v. Feeney, 11 Kas. 593; Nesbit v. Hines, 17 id. 316; Lucas v. Sturr, 21 id. 480; Hover v. Tenney, 27 id. 133.)

The judgment of the district court should be affirmed.

By the Court: It is so ordered.