
    M. J. SIMONTON v. R. SIMONTON, Executrix.
    
      Practice — New Trial.
    
    Where the judge who presided at a trial, goes out of office without making' up a case of appeal, and the appellant is in no default, a new trial will he awarded.
    
      {Adams v. Beeves, 74 íT. C., 106 ; Mason v. Osgood, 72 N. C., 120; Isler v. Haddock, ibid, 119, cited and approved.)
    Civil Action tried at fall term, 1877, of Iredell superior court, before Cloud, J.
    
    
      Mr. R. F. Armfield, for plaintiff.
    
      Messrs. M. L. McCorkle and G. N. Folk, for defendant.
   Smith, C. J.

The transcript of the record in this appeal was filed, at January term, 1878, containing no concise statement of the case as prescribed in the Code, § 801. It appears by affidavit that the counsel of the parties were unable to agree upon a case and sent their respective statements to the judge, who presided at the trial, to settle it. This has not been done as appears from the return to the writ of certiorari issued by order of the court, and the judge has gone out of office. If this omission were the fault of the appellant, his appeal would be dismissed. Adams v. Reeves, 74 N. C., 106. But as it is not, in accordance with the practice in this court a new trial must be awarded. Mason v. Osgood, 72 N. C., 120; Isler v. Haddock, ibid, 119. And it is so ordered.

Pee, Curiam. Order accordingly  