Roberts v. . Partridge

Clark, J.: The facts as to service of the case on appeal áre very similar to those in the recent cases of Cummings v. Hoffman, 113 N. C., 267, and Lyman v. Ramseur, Ibid., 503. The attempted service of the appellant’s case on appeal by counsel was a nullity. State v. Price, 110 N. C., 599. The affidavit of the appellant’s counsel that the defendant’s counsel verbally agreed to accept service is *357 denied by the latter and cannot be considered. Rule 39' of this Court and numerous cases cited in Clark’s Code, (2nd Ed..) 704, and in the supplement to the same, p. 103. The return of the appellants’ case by the appellee with exceptions thereto, if in apt time and without object:ng to the defective service thereof, might have been deemed a waiver, and in such case the appellant, not having sent the papers to the judge to settle the case on disagreement, would be taken to have accepted the appellee’s amendments, (Lyman v. Ramseur, supra,) and the case on appeal would be the appellants’ statement as amended by the appellee’s exceptions. Jones v. Call, 93 N. C., 170; Owens v. Phelps, 92 N C., 231. But the appellants’ counsel rejected the appellee’s counter-case, as he had a right to do, on the ground that it was returned too late and neither sent the papers to the judge to settle the case nor caused his own case, as amended by the appellee’s exceptions, to be certified to this Court. Consequently there is no valid case on appeal before us, and the judgment must be affirmed unless error appears upon the face of the record proper, (Lyman v. Ramseur, supra,) and no error appearing therein the judgment below is affirmed. Affirmed.