Metcalfe v. Chambers & Weaver Co. , 188 N.C. 805 ( 1924 )

Connor, J.

It appears from affidavits filed in this Court in support of appellant’s motion that the case on appeal has not been agreed upon or settled; that there has been no laches on the part of appellant, but that on the contrary appellant has been diligent in his efforts to get the case on appeal settled in accordance with the statute and with the rules of, this Court. The illness and untimely death of the judge has rendered it impossible for appellant to get the case on appeal settled. Having docketed the case in this Court, he now moves for a new trial.

Appellee filed an affidavit in this Court, in which he offers to withdraw his countercase and accept appellant’s case on appeal. Both the case on appeal and the counter case as filed with Judge Ray were in his possession at the time of his death. It does not appear that appellant and appellee have agreed that a copy of said case on appeal in the possession of either of them is a true copy of the case as filed with the judge. Judge Ray became ill while holding court, and left at once for the hospital in Baltimore. Whether or not the papers in his possession can now be found does not appear. The offer of appellee to withdraw the countercase and to accept appellant’s case on appeal as filed with the judge, or a copy of same, was not made until the hearing of the motion in this Court. Appellant has a right to have his appeal from the judgment of nonsuit reviewed by this Court. C. S., 632. This cannot be done without a statement of the evidence submitted at the trial. This cause, in accordance with the practice of the Court (Rector v. Mfg. Co., post, 807), must be remanded, in order that there may be a

New trial.