#### JOHN I. TAYLOR v. GEORGE W. SIMMONS.

Practice — Gertiorari—Failure to Settle Case on Appeal— Death of Trial Judge — New Trial.

Where an appellant in apt time docketed the record proper and applied for. a certiorari, the case on appeal not having been settled by the trial Judge, though case and counter-case had been duly served, and in the meanwhile the Judge died, a new trial will be ordered.

*71Motion of defendant for a writ of certiorari.

Mr. W. W. Otarle,, for plaintiff.

No counsel, contra.

Clark, J.:

At tbe last Term of this Court, being the first Term of this Court after the trial below, the appellant docketed the record proper and applied for a certiorari as the case had not been settled by the Judge. Pittman v. Kimberly, 92 N. C., 562. By consent the motion was continued to this term. It appears that the ease and counter-case were served in time and that the appellant immediately applied to the Judge to settle the case. The appellant' would be entitled to his certiorari, but as the trial Judge (His Honor Judge Graves) has since died, the Court must order a new trial. State v. Parks, 107 N. C., 821.

New Trial.