Opinion
(Filed 28 February, 1917.)
Appeal and Error — Service of Case — Extension of Time — Written Agreement — Unanswered Affidavit.
The ruling that a certiorari will not be allowed in the Supreme Court to bring up a record on the ground that the agreement to extend the time for serving case was not reduced to writing, has no application where the applicant files his affidavit to the effect that the time had been extended and the case served therein, and it is not denied by counter affidavit; and motion to dismiss the appeal will be denied.
W. S. O'B. Robinson Son for plaintiff.
Langston, Allen Taylor, and Stevens Beasley for defendant.
The plaintiff moves in this Court to strike out from the record the case on appeal on the ground that it was not served in time, and to affirm the judgment. The defendant moves for a certiorari in order that the case on appeal may be settled, and filed affidavits showing an agreement of one of the counsel for the plaintiff extending the time for service of case on appeal.
No affidavit of counsel with whom the agreement is alleged to have been made has been filed.
The motion of the plaintiff is denied and the motion for a certiorari is allowed because, while we will not pass on affidavits and determine whether an oral agreement which is denied has been made we do consider affidavits showing an agreement, which are uncontradicted. Sondley v. Asheville, 112 N.C. 694.
The plaintiff is allowed twenty days after this opinion is certified to the Superior Court to serve his case on appeal, or exceptions to the defendant's case.
Cited: Justice v. Lumber Co., 181 N.C. 391.