Opinion
(Decided 8 March, 1898.)
Appeal — Service of Case on Appeal — Practice — Rule of Court — Agreement of Counsel — Entry on Record.
1. As the time for service of case on appeal is fixed by statute, it cannot be extended by the trial judge or otherwise except by consent.
2. Stipulations as to the extension of time for service of case on appeal must be entered on the record or be contained in some writing; otherwise, if an alleged agreement for such extension is denied, it will not be considered by this Court.
3. An entry on the Superior Court docket of "20 days" is meaningless in itself, but, if an entry which the court was authorized to make, the judge could at a subsequent term draw it out at greater length so as to make the record speak the truth.
ACTION tried at November Term, 1897, of HARNETT, before Robinson, J. There was a judgment for the defendants and the plaintiffs appealed. In this court, the appellees moved to dismiss the appeal on the ground that the case on appeal was not served in due time.
D. H. McLean for plaintiffs (appellant).
Simmons, Pou and Ward for defendants.
The statute having fixed the time allowed for serving notice of appeal, and cases on appeal and counter cases, the judge cannot extend time. Woodworking Co. v. Southwick, 119 N.C. 611; Hemphill v. Morrison, 112 N.C. 757. It can only be done by consent. Here, counsel on one side swear that consent was given, and the other side deny this, and the alleged agreement must be disregarded. Rule 39; Sondley v. Asheville, 112 N.C. 694; Graham v. Edwards, 114 N.C. 228. The entry on the docket, "twenty days," means nothing in itself, but if it was an entry the Court was authorized to make, the judge at the next term could draw it out at greater length to make (195) the record speak the truth, but as the only validity it has is as the alleged agreement of counsel, and the context whether it was made by counsel, and its meaning, could only be determined upon conflicting affidavits of counsel, it must be disregarded. Consent to extension of time is not shown. There is hence no valid case on appeal, and there being no error on the face of the record proper, the judgment is
Affirmed.
Cited: Cozart v. Assurance Co., 142 N.C. 523.