
    JOHN JUSTICE v. THE BOONE FORK LUMBER COMPANY.
    (Filed 18 May, 1921.)
    1. Appeal and Error — Service of Case — Affidavit—Counter Affidavit— Certiorari.
    An affidavit of counsel that time had been agreed upon for preparing and serving his ease on appeal will be considered in the Supreme Court on appellee’s motion to dismiss, where uncontradicted by counter affidavit, and the motion will be disallowed, and a certiorari will issue, where appellant shows merits.
    2. Same — Settlement of Case.
    Where the trial judge has not sufficiently passed upon the appellant’s exceptions to the report of a referee and has unsuccessfully endeavored to draw a judgment satisfactory to the parties, which was to be first submitted to them before filing, and has inadvertently failed to notify the appellant of its filing, who was not satisfied therewith and desired to appeal, his exceptions presenting serious legal questions for final adjudication, the Court will remand the case to afford the appellant opportunity to be heard upon his exceptions by the trial judge, and to have him settle the case on appeal, in the course and practice of the court, upon the refusal in the Supreme Court of the appellee’s motion to dismiss.
    8. Appeal and Error — Reference—Superior Court — Affirmance of Report —Evidence.
    The Supreme Court will not,' on appeal, pass upon the affirmance by the trial judge of facts found by the referee, upon supporting evidence.
    4. Appeal and Error — Docketing of Case — Superior Courts — Order Extending Time for Docketing.
    While the trial judge may not extend the time of appellant to file his case on appeal, except by consent, this consent is presumed when the order for an extension is filed, or is of record.
    Appeal by defendant from Harding, J., at the October Term, 1920, of Avery.
    This action was brought to recover a balance due on a logging contract. It was referred to a referee, by consent, to take and state the-account between the parties. He filed bis report, and defendant excepted thereto. The court considered the exceptions and sent the case again to the referee with the exceptions, and directed him to reconsider it, and this was repeated a third time, the referee refusing to change •his report. The case came on for hearing before the judge, and he agreed with counsel for defendant to prepare and submit to them a judgment which should be only tentative, and not bind them, unless they agreed to it, and if they did not, he would notify the parties and have the case argued before him. Defendants were to be notified of the judgment when filed. This, through inadvertence, was not done. Defendants appealed and were granted 60 days from 1 August, 1920, to file tbeir ease on appeal, and plaintiff a like number of days to file a countercase or exceptions. Defendant did not file tbeir case witbin tbe 60 days allowed to it, but filed it on 16 October, 1920, tbe time originally allowed to it having expired on 12 October, 1920. Plaintiff moved in tbis Court to dismiss tbe appeal for tbis reason. Tbe defendant replied to tbe motion by tbe affidavit of tbe attorney, wbo represented it, tbat tbe reason its case on appeal was not filed witbin tbe 60 days, originally granted to it,'was tbat one of tbe attorneys for tbe plaintiff bad agreed witb its attorney tbat defendant might have an extension of time to file its case, which should not exceed four more days, and tbe appellant’s case was filed witbin tbe time of tbe extension, and it so appears in tbe record to have been filed. Plaintiff did not reply by affidavit to tbe affidavit of defendant’s attorney, wbo acted for it in tbe matter, but relied simply upon tbe written motion to dismiss, stating tbe grounds upon which be relied for dismissing tbe appeal, but not verified by bis oath.
    
      Harrison Baird, F. A. Linney, and Charles Hughes for plaintiff.
    
    
      W. B. Lovill and W. C. Newland for defendant.
    
   WaiKee, J.,

after stating tbe material facts of tbe case: First. As to tbe motion to dismiss tbe appeal. ¥e have decided in several cases, and very recently in Brown v. Taylor, 173 N. C., 700 (citing Sondley v. Asheville, 112 N. C., 694), tbat we will not bear counsel, on matters of controversy between them, as to an. extension of time for preparing and serving a case on appeal, but tbis rule does not apply, where tbe appellant alleges in an affidavit, or duly verified statement, tbat there was an agreement for an extension of tbe time, and tbis affidavit is not disputed .by the oath of tbe appellee, wbo, therefore, has waived any irregularity or defect in tbe order for an extension made by tbe judge, if there be such, by agreeing to further extension to 16 October. This case cannot be distinguished from Brown v. Taylor, supra, which will appear by tbe following short recital of its facts and tbe decision of tbe Court therein: “Tbe plaintiff moved in tbis Oourt to strike out from tbe record tbe case on appeal on tbe ground tbat it was not served in time, and to affirm tbe judgment. Tbe defendant moves for a certiorari in order tbat tbe case on appeal may be settled, and filed affidavits showing an agreement of one of tbe counsel for tbe plaintiff extending tbe time for service of case on appeal. No affidavit of counsel witb whom tbe agreement is alleged to have been made has been filed. Tbe motion of tbe plaintiff is denied, and tbe 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.” This motion is therefore denied.

Second. As to the other question. It appears that there was much irregularity in the proceedings of the Superior Court, and we may do injustice to one or the other of the parties and may not reach the merits of this case unless we disregard what has been done since the judge considered and passed upon the excej>tions to the referee’s report and filed the tentative judgment. There surely has been a misunderstanding between the court and the defendant, as far as appears, and it would not be just to hold the judgment conclusive under the circumstances. The appellant may well have been misled, and says he was, by the failure to give him the promised notice. The learned judge endeavored to rectify the mistake which resulted from his inadvertence, and the appellant should not be made to suffer on account of it, as the exceptions present questions worthy of serious consideration. If the allegations are true, there has been no fair opportunity to be heard fully on the exceptions to the report, which is appellant’s right. Besides, the judge’s affirmance of the report, as to the facts found by the referee, will not be reviewed here, as we have so often held, and this would prejudice the appellant, if it is to stand, and he cannot be heard fully upon such findings.

It is true that a judge cannot extend the time of an appellant for filing his case on appeal, except by consent, but consent is presumed if the order for an extension is filed, or is of record. Woodworking Co. v. Southwick, 119 N. C., 611; Henry v. Hilliard, 120 N. C., 479.

The Court will therefore set aside all the proceedings since the hearing upon the exceptions, and it is directed to hear and pass upon the defendant’s exceptions, after notice to the parties, and to proceed thereafter according to law, and the course and practice of the court, and for this purpose we remand the case.

Remanded.

Per Curiam:.

Under the circumstances of this case, we think the costs should be taxed against the defendant, and it is so ordered.  