Parker v. . Coggins

At the call of the district to which this case belongs, in October of last term, being the first term of this Court which began after the trial below, the appellant had docketed the record proper. It also appears that the lack of a "case settled on appeal" was without laches on appellant's part, the appellant's case and the countercase having been served in due time and the judge promptly notified so that he might name a time and place for settlement. Regularly, a certiorari should then have been asked for, but it was rendered unnecessary by the agreement of counsel in writing that the case on appeal should be settled by the judge at Vance Court, which time was afterwards, by another agreement *Page 50 of counsel, which is admitted, continued to Nash Court, which began 19 November. The judge (Graves) died during the second week of the time allotted by law for said court, during which term, by the agreement, the case was to be settled. But if the judge had died after said term, an application for a certiorari was at no time necessary, since it appears in the affidavit of appellant and is admitted by appellee that the judge was unable at any time after the beginning of Nash Court to discharge any of his duties on account of his mortal illness. Under these circumstances the appellant has used all due diligence. As it is impossible now to procure the case to be settled, the plaintiff is entitled to a new trial (S. v. Parks, 107 N.C. 821), unless the appellee (73) had asked, as in Drake v. Connelly, 107 N.C. 463, to withdraw his countercase and try the appeal on the appellant's statement of case on appeal, or the appellant had asked to withdraw his case and try the appeal on appellee's countercase. Ridley v. R. R., post, 923. It was not laches to fail to print the record, since the appeal could not be heard without the case settled, unless the appellee had notified the appellant in time that he should withdraw his countercase and ask to have the appeal heard upon appellant's statement of the case on appeal. The case must be remanded to the end that there may be a new trial. New trial.