#### CHARLES C. BURLINGHAM et al. v. H. C. CANADY et al.

(Filed 4 October, 1911.)

1. Appeal and Error — Case—Counter-case—Settlement—Failure to Request Judge.

Upon tbe service of a counter-case on appeal it is the duty of tbe appellant to immediately request tbe judge to appoint a time and place to settle the case under Revisal, sec. 591, and upon bis failure to do so the ease of tbe appellee becomes the case on appeal.

2. Same — Sheriff’s Returns — Evidence, Prima Facie — Printing Record.

The appellee, having disagreed to the appellant’s statement of the case, had his counter-case served, as appears by the return made by the sheriff thereon. Both cases were then filed in the clerk’s office, but’ by an error which the clerk explained, only the appellee’s ease was certified to the Supreme Court. Upon an *178affidavit of appellant’s counsel it was contended that no counter-case had been served: Sold, (1) the return of the sheriff upon the counter-case is prima, facie evidence that the counter-case had been served as therein stated, and it cannot be contradicted by a single affidavit; (2) as the appellant had failed to reguest the judge to settle the case under the statute, the counter-case is the case on appeal, which not having been certified and printed, under the rule, the judgment below is affirmed, on motion of appellee.

Appeal from Peebles, J., at May Term, 1911, of Owslow.

Th'e facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Wallcer.

E. K. Bryan and, Pranlc Thompson for plaintiff.

T. G. Wooten for defendant.

"WalKer, J.

_ Tbe defendants in tbis case appealed to this -Court from a verdict and judgment rendered against them in tbe court below, and served their case on appeal upon the plaintiffs. Tbe plaintiffs, disagreeing to this case, prepared a counter-case and caused tbe same to be duly served upon tbe defendant’s counsel by tbe sheriff, who made a return to that effect. Both cases were then filed in tbe clerk’s office. Plaintiff’s counsel moved in tbis Court to affirm tbe judgment, as no case on appeal had been sent to tbis Court, though tbe record proper is here, tbe motion being based upon tbe ground that counsel disagreed to the case, and tbe judge was not requested, as required by Revisal, sec. 591, to settle tbe case, and that no case on appeal has actually been settled. Defendant’s counsel filed an affidavit, in which be denied positively that any counter-case or exceptions bad been served upon him or tbe defendants, and that be inquired of tbe clerk, who told him that no such case or exceptions bad been filed in his office. This is tbe only affidavit introduced in behalf of tbe defendants. Plaintiffs filed tbe affidavits of Mr. Frank Thompson, one of their attorneys, and tbe sheriff, E. W. Summerville, who state that tbe counter-case was served upon tbe defendants’ counsel on 14 June, 1911, and tbe sheriff’s return also shows that such service was made by him. M. M. Capps, tbe clerk, testifies that tbe *179counter-ease was filed in bis office, and be thought that it was sent up with the record to this Court, and that the statement to the contrary in his certificate is an error which he inadvertently committed, as the record for this Court was prepared by the defendant’s attorneys, at their request, and was presented to him for his signature to the certificate, and he supposed, of course, that the record was in proper form and contained the counter-case on appeal, and he so stated to Mr. Frank Thompson, defendant’s attorney, afterwards.

The record here does not contain the counter-case, but only the case as tendered by the defendants to the plaintiffs. Under the circumstances, we must grant the plaintiff’s motion and affirm, as we discover no error in the record proper.

The sheriff’s return imports truth. It is made under oath and cannot be overthrown or shown'to be false by the affidavit, merely, of the person upon whom the service is alleged to havq been made. It has often been held that the return of a ministerial officer, as to what he has done out of court, is prima facie true, and cannot be contradicted by a single affidavit. Hunter v. Kirk, 11 N. C., 277; Mason v. Miles, 63 N. C., 564. It would be oath against oath, and we could not well say with whom was the truth. Besides, the service of process or other papers, and the return thereof, are very serious matters, and should not be lightly set aside. In this ease, though, the sheriff’s return is strongly corroborated by the affidavits of Mr. Thompson, the clerk, and the officer himself, and if no technical force or weight is to be given to the return, we would be bound by the decided weight of the evidence to find against the defendants as to the fact of service. As the counter-case was properly served, it was the duty of the defendants to immediately request the judge to appoint a time and place to settle the case under Revisal, see. 591, and upon his failure to comply with this requirement of the statute the ease of the appellee became the case on appeal. As that case has not been certified to this Court, as part of the transcript, and therefore has not been printed, we affirm the judgment.

Affirmed.