#### S. T. HARE et al. v. W. H. GRANTHAM.

(Filed 20 March, 1912.)

Appeal and Error — Motions — Pleadings — Allegations Sufficient— Practice.

The case on appeal in this case not having been served in time, is not with the record in this Gourt, and it appearing from an examination of the record proper that the complaint states facts sufficient to constitute a cause of action, the defendant's motion to dismiss the action is disallowed, and plaintiff’s motion to affirm the judgment below is allowed.

Appeal from Peebles, J., at November Term, 1911, of Samp-SON.

This was a civil action for the recovery of personal property claimed by the plaintiff and alleged to be -unlawfully withheld by the defendant. From a verdict and judgment in favor of the plaintiff, the defendant appealed.

R. L. Godwin and E. F. Young for plaintiffs.

Douglass & Lyon and J. Q. Clifford for defendant.

Per Curiam.

It is admitted that the case on appeal was not served within the time required by law, and therefore has not been sent up to this Court with the record.

The plaintiffs move the Court to affirm the judgment upon the face of the record.

The defendant moves the Court to dismiss the action because on the face of the complaint no cause of action is stated.

The Court, being of opinion that a cause of action is stated in the complaint, and that there is no error apparent' upon the face of the record, allows the motion to affirm the judgment of the Superior Court.

Affirmed.