By the record which has been certified to us in this case, it appears that the bill of exceptions taken by the plaintiff in error was not filed until the lapse of nearly sixty days after the adjournment of the term at which the judgment complained of was given, and the record fails to show that time was given to present such bill of exceptions.
According to all the authorities, and, indeed, by the letter of the statute, the bill of exceptions must be signed during the term at which the judgment or opinion excepted to is *471given, unless a day in vacation is allowed therefor by order of the court. Rev. Stat., ch. 70, § 21.
And, according to some cases, if the record fails to show such order, and that the bill of exceptions was filed within the time limited, it cannot be considered in the appellate court, even though, as it would seem, the objection is not suggested by counsel. Moffit v. Pollard, 19 Ind. 178 ; Cable v. Smoyer, id. 202; Pick v. Vankirk, 15 id. 159 ; Hance v. Miller, 21 Ill. 637.
We think, however, that the verbal agreement of the parties or of counsel may supply the absence of such order of court, and the defendant in error having joined in error and assented to the submission of the cause upon written argument, we will construe this as implying a stipulation that all matters appearing in the transcript and which are esteemed in law flb fqrm a part of the record are properly certified to us.
But accepting the bill of exceptions which is set out in the record as properly before us, we are not able to see that any error was committed in the court below.
The only question in issue between the parties was, whether the plaintiff had fully performed the contract for grading and excavation which constituted the principal item of his account, and upon this question, we must presume, unless the contrary clearly appears, that the court below found correctly.
Where an issue of fact is submitted to the determination of the judge at nisi prius he performs the functions of both court and jury; he is the exclusive judge of the credibility of witnesses, and in the court of review the same presumption must be indulged to sustain his finding, as would be made in favor of the verdict of a jury, if the issue had been submitted to a jury.
We must, therefore, presume that his honor, who presided below, regarded the witnesses who were sworn on the part of the defendant below (or some of them) as unworthy of credit; and we, who have not heard the witnesses, and can*472not draw conclusions from their manner and bearing in giving testimony, cannot say that he has erred.
The finding of the court below, therefore, cannot be said to be erroneous; and if there is any error apparent in the amount allowed to plaintiff below for his damages, it is not an error of which his adversary can be heard to complain.
Neither can it be assigned for error that the court below omitted to apportion the costs, for this is a matter purely in the discretion of the court.
Let the judgment of the Jefferson district court be affirmed, with costs.
Affirmed.