
    PENNIE HOLLOMAN v. CALVIN HOLLOMAN.
    (Filed 4 October, 1916.)
    L Appeal and Error — Case—Service—Objections and Exceptions.
    Technical and immaterial objections made to tbe service of cases on appeal upon opposing parties are not favored by tbe Supreme Court; and an appellant may not decide for bimself upon tbe sufficiency of appellee’s counter-statement because not served witb bis own statement attached; tbe proper procedure being to except to tbe sufficiency, have it passed upon by tbe trial judge while settling tbe case, and, upon an adverse bolding, by exception thereto for tbe Supreme Court..
    2. Same — Recordari—Motion to Affirm.
    Where a counter-case on appeal bas been served without appellant’s statement attached, and tbe latter, for tbat reason, bas not requested :the judge to settle the case, but applies for a writ of certiorari in the Supreme Court to bring up from the Superior Court his statement, which appellee had filed with his own statement in the clerk’s office, and it appears that each statement had been served on the adverse party in time: Held, the motion for certiorari will be denied; and if no error in the record proper, filed in the appellee’s motion, is found, the judgment below will be affirmed.
    Appeal by defendant from Stacy, Jat April Term, 1916, of Heet-EORD.
    
      Winborne & Winborne for plaintiff.
    
    
      B. Q. Bridger for defendant.
    
   Clark, C. J\

This is a petition for a certiorari by the defendant, who appealed as a pauper. He alleges that by consent the appellant was allowed sixty days to serve the case on appeal and the appellee sixty days thereafter to serve his counter-case or exceptions; that on 26 June, within the time agreed, the appellant served his ease on appeal and that on 10 July, 1916, the appellee served what purported to be her exceptions or counter-case, which the appellant deemed insufficient under Revisal, 591, for the reason that the appellee did not return with his counter-ease the copy of the appellant’s statement of his case, “with her approval of the specific amendments indorsed or attached,” he did not send the papers to the judge to settle the case on appeal, and he asks that this Court send a certiorari to the clerk’s office to send up the appellant’s statement of the case on appeal as the “statement of the case.”

The appellee files an affidavit in reply, stating that the appellee duly served its counter-case on the defendant’s counsel on 10 July, well within the. time allowed, and that, further, about the middle of July, 1916, appellee’s counsel wrote to the judge by whom the case was tried, inquiring what had been done about settling the case on appeal, to which the judge replied that no papers had been sent to him and that he had heard nothing from it, and that at request of the judge they sent him copies of the evidence, the exceptions taken on'the trial, and the court’s charge, as taken down by the eoui’t stenographer, and that on 9 August, 1916, within the sixty days allowed appellee, Judge Stacy returned all these to plaintiff’s counsel with the statement: “I have not been requested to settle this ease, and am returning the papers you sent me.”

The failure of the appellee to return a copy of the case on appeal served on her by thel appellant was not such a default as entitled the appellant to decide in his own favor that it was fatal. If the appellant had wished to take advantage of such supposed defect he should have sent tbe papers to tbe judge, raising tbis exception, in order that tbe judge might pass upon sucb exception, and tbat bis ruling, together .with tbe case on appeal as settled bj tbe judge, should come up to tbis Court. In tbat event tbe whole matter would have been disposed of at once. If tbis Court should have held tbat tbe defect was fatal, tbe appeal would have been dismissed at appellee’s cost. If tbe Court should have held otherwise, then tbe cause would have befen argued and decided upon tbe case as settled by tbe judge.

In deciding for himself tbat tbe appellee bad committed a fatal error the appellant himself was in default. If be bad for any reason needed tbe return of bis. copy of tbe case on appeal, which be bad served on the appellee, be could doubtless have bad it upon request made known to tbe appellee’s counsel. If tbis bad not been done, and tbe appellant-bad kept no copy of bis own case, matters might have been different. But in fact tbe appellant avers tbat be bad filed a copy of tbe case in tbe clerk’s office, and it is tbat case which be now wishes tbis Court to procure by certiorari, tbat it may be treated as tbe case on appeal. Tbe appellee’s counter-case was served on appellant 10 July and also filed in clerk’s office 27 July, both within tbe time, and there was no reason tbe ease should not have been sent to tbe judge to settle.

Tbe Court does not favor sucb unnecessary and technical objections. Tbe appellant was put to no inconvenience by tbe failure of tbe ap-pellee to return bis copy of tbe case on appeal and made no objection tbat it bad not been returned, and bad another copy himself. Tbe appellee could file either specific objections or a counter-case, S. v. Gooch, 94 N. C., 982, and cases cited in Anno. Ed.

Under these circumstances tbe motion for a certiorari is denied, and there being no case on appeal filed in tbis Court by tbe default of tbe appellant, and tbe only record before us being tbe record proper, on inspection of which we find no error, the! motion of tbe appellee to affirm is allowed.

Motion by appellant for certiorari, Denied.

On motion by appellee, Affirmed.  