1. practice stracV ab" rectfea cor" I. The appellees upon the submission of this cause filed a motion to affirm the judgment of the court below, upon the ground that appellants did not except to the ruling of the court in affirmiug the report of the commissioners, at the time the same was made, nor for some time after the adjournment of court. The motion refers to page 15 of the abstract. The point in the motion cannot be sustained. It does not appear from the abstract that the exception was taken out of time. On the contrary the exception is noted at the conclusion of the order and judgment for costs, as though taken at the time. Appellee does not present any additional abstract amending the abstract of appellant, and we must therefore accept the latter as correct.
2.-: wii of exceptions andfifedüi ' time. II. The motion also asks that the bill of exceptions which contains all of the evidence be stricken out, because it was not signed by the trial judge, nor filed, until , & J ’ ’ nearv one month after the adjournment of the court, and without any time having been given beyond that fixed by law for settling and filing bills of exception.
This part of the motion is well taken. The appellant’s abstract shows that the final order was made in the case on the —day of May 1879, and that the bill of exceptions was presented to the District Court J une 26, 1879. It nowhere appears that the bill was signed and filed during the term, nor that the time to do so was by consent extended' beyond the *512term. The motion appears to have been served upon counsel for appellants, and no resistance is made thereto, and no notice thereof is taken in the argument in reply. Under these circumstances, we must sustain the motion to strike the bill of exceptions. Lynch v. Kennedy, 42 Iowa, 220; Gibbs v. Buckingham, 48 Id., 96.
s___. pag_ stítuüonaiity of statute. III. The appellants for the first time, in their argument in reply, raise the question as to the constitutionality of the statute under which this proceeding was had. If it was desired that so important a question should ■|3e passed upon by this court, it should have been presented in such way that an opportunity would have been allowed counsel for appellee under the rules to answer the argument. It is only after the fullest argument, and the most mature consideration, that this court will pass upon so important a question.
IT. The bill of exceptions having been stricken from the record, there is no question presented in the argument of appellants, upon the merits of the case, which we can consider.
4,--: qUes-raised below, A question is made in argument as to the costs. The statute expressly requires “the expenses and costs of the surveys and suit shall be apportioned among all the parties according to their respective interests.” Acts of 1874, chapter 8, § 4.
The court taxed all the costs to the defendants. The statute requires that any party aggrieved by the taxation of a bill of costs may upon application have the same retaxed. Code § 2944. It does not appear that such application has been made. But whether made or not we cannot consider the question upon this appeal, as ertor has not been assigned in the matter of awarding eosts.
Affirmed.