#### BOARD OF WATER AND LIGHT COMMISSIONERS v. M. M. CHAPMAN et al.

(Filed 24 November, 1909.)

1. Appeal and Error — Procedure—Recordari—Appellant’s Laches.

It is no sufficient excuse for tbe failure of tbe appellant to bave bis appeal docketed and ready for argument upon tbe calling of bis district under Supreme Court Rules 5, 17, 30 and 24, that the judge bad tbe original papers and bad not settled tbe case on appeal, when it appears that be was in default in not requesting *328the judge to fix a time and place therefor until forty days after appellee had returnéd his case with objections.

2. Same — Case on Appeal — Appeal Dismissed.

The Eevisal, 591, makes appellee’s case the case on appeal after fifteen days’ delay by appellant to transmit papers to the judge. Appellant’s motion for a recordwri under such circumstances will be denied and appellee’s motion to dismiss granted.

Appeal by defendant from Councill, J., May Term, 1909, of CABARRUS.

The facts are stated in the opinion of the Court.

Shepherd & Shepherd for plaintiff.

L. T. Ilartsell and Welch Galloway for defendants.

Clark, O. J.

This case was tried below at May Term, 1909, of Cabarrus. The appeal should have been docketed and printed, ready for argument when that district was called at this term. Rules 5, 17, 30 and 34. That not having been done, the appellee moved to dismiss. The appellant asked for a certiorari, because the judge had not settled the case and the transcript of the record proper could not be sent up because his Honor had the original papers. This would justify granting a certiorari and the denial of the motion to dismiss, but only if the appellant itself was in no default. Brown v. House, 119 N. C., 622.

It appears from the record that the parties, by consent, extended the time for service of case on appeal and countercase, but that the appellant’s case on appeal had been returned by appellee, with his objections, to appellant, on 21 August, .1909. The statute (Revisal, sec. 591) then prescribes that “the appellant shall immediately request the judge to fix time and place for settling the case,” and provides that if the appellant delays longer than fifteen days to make this request and to mail the case and exceptions thereto to the judge, the appellee’s counter-case (or appellant’s case amended by appellee’s exceptions) “shall constitute the case on appeal.”

The appellant did not make such request of the judge till 1 October, a delay, of forty days. This was gross laches and deprives the appellant of any right to a certiorari and necessitates granting the motion to dismiss. This has been often decided. State v. Jones, at this term (where the delay was thirty-three days); Stroud v. Telegraph Co., 133 N. C., 253; Simmons v. Andrews, 106 N. C., 201.

Appellants are too often prone to forget that appellees have rights. The intent of this section.to safeguard them is evinced by the further provision that the judge, on receipt of appellant’s request, shall forthwith notify the attorneys of both parties of *329tlie time and place to appear before bim for settling tbe case, '“wbicb time shall be not more tban twenty days from tbe receipt of tbe request,” and that tbe judge must settle tbe case within sixty days of tbe termination of a special term, or after tbe courts of tbe district -shall have ended, under a penalty of $500 on tbe judge, to be recovered by any person who shall sue for tbe same, for any failure to comply with tbe above or any requirement of this section. Tbe section further provides that tbe appellant, on receipt of “case settled” from tbe judge, shall, “within five days,” file tbe same with tbe clerk. The next section (Revisal, sec. 591) requires tbe clerk, “within twenty days” thereafter, to transmit a duly certified copy to tbe Clerk of the-'Supreme Court.

Attention must be called to tbe amendment now incorporated into section 591, wbicb, being comparatively new, may have •escaped tbe notice of some members of tbe profession: “If tbe appellant shall delay longer tban fifteen days after tbe appellee serves bis eountercase, or exceptions, to request tbe judge to settle' the case on appeal and mail the case and countercase, or exceptions, to tbe judge, then tbe exceptions filed by tbe appellee shall be allowed, or tbe countercase served by bim shall constitute the case on appeal. However, the time may be extended by agreement.” Here there was no such agreement, and not only this Court could not send down a certiorari for tbe case, but if tbe judge bad “settled” tbe case after the fifteen days’ delay, without consent of appellee, be was functus officio and without authority, except where there was unquestionably valid legal ground to excuse tbe delay. Tbe ease here was “constituted” at tbe expiration of the fifteen days’ delay of appellant to send tbe papers and request to tbe judge, exactly as the appellant’s ease becomes automatically tbe case on appeal if no exceptions or eountercase is served within ten days. Tbe appellant should therefore have sent up in apt time tbe ease as “constituted” at tbe end of bis fifteen days’ delay.

Tbe lavunaking power seemed to think that tbe statute, as formerly written, was not strict enough or not sufficiently complied with, and have thus amended it. It is our duty to observe it.

Tbe motion of appellant for a certiorari is- denied and the motion of appellee to dismiss tbe appeal is allowed.

Appeal dismissed.