Smith v. . Smith

154 S.E. 737, 199 N.C. 463, 1930 N.C. LEXIS 149

Opinion

Stacy, C. J.

Where there is a controversy as to whether the case on appeal was served within the time fixed or allowed, or service within such time waived, it is the duty of the trial court to find the facts, hear motions and enter appropriate orders thereon. Holloman v. Holloman, 172 N. C., 835, 90 S. E., 10; Barrus v. R. R., 121 N. C., 504, 28 S. E., 187; Walker v. Scott, 102 N. C., 487, 9 S. E., 488; Cummings v. Hoffman, 113 N. C., 267, 18 S. E., 170.

It appears, without contradiction, that appellant’s statement of case on appeal was not served within the time allowed by agreement of counsel, hence the judge was without authority to settle the case. Lindsey v. Knights of Honor, 112 N. C., 818, 90 S. E., 1013; Cozart v. Assurance Co., 142 N. C., 522, 55 S. E., 411; Barber v. Justice, 138 N. C., 20, 50 S. E., 445. And his attempted settlement of the case, without finding that service within the stipulated time had been waived, did not cure the defect. McNeill v. R. R., 117 N. C., 642, 23 S. E., 268; Forte v. Boone, 114 N. C., 176, 19 S. E., 632.

The “case,” therefore, as settled, must be disregarded. Cummings v. Hoffman, supra.

Application for certiorari was made at the Spring Term of this Court and allowed, but this did not change the time already fixed by agreement of the parties, for serving statement of case on appeal, and exceptions or countercase.

There being no case on appeal, legally settled, does not, however, entitle the appellee to have the appeal dismissed. Roberts v. Bus Co., 198 N. C., 779; Wallace v. Salisbury, 147 N. C., 58, 60 S. E., 713. But as no error appears on the face of the record proper, the judgment must he affirmed. Delafield v. Construction Co., 115 N. C., 21, 20 S. E., 167.

Affirmed.