#### BARBER v. JUSTICE.

(Filed April 4, 1905).

Appeal — Countercase—Time of Service — Correction— Certiorari.

1. Neither this court nor the court below can change, without agreement of both parties, the requirements of section 550 of the Code, which provides that if the appellant’s case on appeal is not returned by appellee in five days “with objections” it shall be deemed “approved.”

2. Where appellee’s counter case through inadvertence of counsel, was not served until the eighth day after service of appellant’s ease on appeal, a motion by appellee for certiorari will be denied though appellee produces a letter from the trial judge that appellant’s case is erroneous and if given an opportunity he will correct it.

*213. It is only when the trial' judge has settled the case on appeal, in the exercise of his proper jurisdiction, that this court, upon affidavit of error therein, and a letter from the judge that he wishes to make the correction, will give him such opportunity.

ActioN by W. T. Barber against Lntber Justice, beard by Judge B. B. Peebles and a jury at "tbe October Term, 1904, of tbe Superior Court of ScotlaND County. From a judgment for tbe defendant, tbe plaintiff appealed. Ap-pellee’s motion for a certiorari being denied, be assented to a new trial.

J ohn D. Shaw & Son & Qibson, for appellant.

Johnathan Peele and M. L. John, for appellee.

Clark, C. J.

Motion by appellee for certiorari. Tbe appellant served bis statement of case on appeal witbin tbe statutory time. Appellee’s counter-case was not served until tbe eigbtb day thereafter. Tbe Code, Sec. 550, provides that if tbe appellant’s case is not returned by appellee in five days “with objections” it shall be “deemed approved.” State v. Price, 110 N. C., 600 and cases cited. There is no agreement to extend time alleged or admitted and neither this court nor tbe court below can change tbe statutory requirement. Tbe appellee does not allege that be was misled by tbe opposite party but says that he relied upon tbe statement of another member of tbe bar that be bad ten days in which to serve bis counter-case. In a criminal case,State v. Downs, 116 N. C., 1066, tbe court said: “Ignorance of law excuses no one and tbe vicarious ignorance of counsel has no greater value, State v. Boyett, 32 N. C., 336. * * * If ignorance of counsel would excuse violations of tbe criminal law rthe more ignorant counsel could manage to be tbe more valuable and sought for, in many cases, would be bis advise.” If this is true in criminal cases, certainly tbe inadvertence of counsel in a civil case cannot be more effica-*22cions. In Phifer v. Ins. Co., 123 N. C., 410; Douglas, J. says: “While it is always matter of regret that any one should suffer by following the advice of licensed attorneys we cannot ignore the rights of adverse parties, or disturb the orderly procedure of the courts without sufficient cause.”

If the judge had notwithstanding “settled” the case, it would not have cured the failure to serve counter-case in time, for the judge could no more extend the statutory time after failure to serve counter-case in time than he could beforehand. Barrus v. Railroad, 121 N. C., 505; McNeill v. Railroad, 117 N. C., 642; Forte v. Boone, 114 N. C., 176. Knowing the above and similar authorities'the judge below did not attempt to settle the case, but the petitioner produces a letter from him that the appellant’s “case” is exceedingly erroneous and if .given an opportunity he will correct it. The appellee had an opportunity to do this by filing his exceptions to ajojaellant’s case within five days after service thereof and not having done so he waived the right to have the matter submitted to the judge for correction. The case must be “deemed approved,” says the statute, Code Sec. 550. In Ice Co. v Railroad, 125 N. C., 17 the application was from the appellant fixed with a heavy judgment (and not as here from appellee who can but suffer a new trial,) the facts were exceptional and that case is a precedent which can rarely be followed and only under a like unusual combination of circumstances.

It is only when the judge has settled the case, in the exercise of his proper jurisdiction, that upon affidavit of error therein and a letter from the judge that he will correct it if given the opportunity, the court will give him such opportunity. Such letter'from the judge is required, not as a courtesy to him, nor as an acknowledgment of any inherent discretion in him, but because it would usually be doing a vain thing, and most often would result in needless delay, to grant a certiorari to give the judge opportunity to correct *23a case, already certified by him as correct, unless counsel have had the diligence to procure a letter from the judge that he wishes to make the correction. Cameron v. Power Co,. 137 N. C., 104; Sherrill v. Tel. Co., 116 N. C., 654; Boyer v. Teague, 106 N. C., 571 and other eases cited in Clark’s Code (3 Ed.) p. 936. Here the judge not having been vested with jurisdiction to settle the case, by reason of appellee’s failure to file exceptions to appellant’s case in the time allowed by law, this court cannot set aside the appellant’s rights under the statute and confer jurisdiction hy issuing a certiorari.

Upon the motion being denied, the appellee in open court assented that a new trial should be awarded, and it is so ordered.

Per Curiam:

New Trial.