#### J. K. KERR et al. v. W. B. DRAKE, Jr., et al.

(Filed 5 October, 1921.)

1. Appeal and Error — Service of Case — Motion to Dismiss — Notice— Waiver.

It is not necessary for the appellee to give appellant notice of a motion to dismiss tbe appeal under the rules of court, and counsel saying that he had not examined the appellant’s statement of the case, served after the expiration of the time allowed, is not a waiver of his client’s rights.

2. Same — Agreement—Extension of Time.

An extension of time by consent for appellant to serve his case on appeal to the Supreme Court must be strictly complied with, within the time agreed upon with the appellee’s counsel, unless a further agreement has been made for an extension of time.

3. Appeal and Error — Statutory Right.

The right of appeal to the Supreme Court rests upon the statute, and is not an absolute one, and the appeal will bfe dismissed, under the rules, unless appellant shows sufficient cause, and that he has not been negligent therein.

4. Same — Transcript—Docketing—Certiorari.

Where the appellant is not in default in bringing up his case to the Supreme Court, the appeal will nevertheless be dismissed under the rule unless at the first term after the trial below and at or before the time when the appeal should be docketed, the appellant shall file a transcript of all the record available, and ask for a certiorari to complete the transcript or to have the case settled.

5. Appeal and Error — Docketing—Baches—Attorney and Client.

The negligence of counsel in sending up, docketing, and printing the transcript is that of his client, and is imputed to him.

*765MotioN by defendants to reinstate the appeal in this case, which, has been docketed and dismissed under Eule 17, on motion of plaintiffs.

Butler & Serving and Grady & Graham for plaintiffs.

B. S. Grumpier and A. L. Qox for defendants.

Per Cueiam.

This case was tried at June Special Term, 1921, of Sampson before Lyon, J. Seven days before the docket from that district was reached the appellee filed the certificate required by Rule 17, 174 N. C., 831, and his motion to docket and dismiss under said rule, which was allowed when the call of the district began. Thereafter, on the same day, the appellants filed an affidavit and moved to reinstate.

There was a verdict against the defendants and judgment from which they appealed. By consent the defendants obtained 30 days from the adjournment of said term of court to serve case on appeal, and plaintiffs were allowed 30 days thereafter to serve counter case. No case on appeal was served by defendants within the time agreed upon, but, on the contrary, it was not served until 2 September, 1921, i. e., 61 days after adjournment of said June Special Term.

On 27 September the appellants filed an affidavit and motion to reinstate the case on appeal which sets forth the above agreement of 30 days after 2 July to serve countercase, and alleged that on 29 July, 1921, the resident counsel in Sampson having received transcript of the evidence from the court stenographer, forwarded the same to their associate counsel in the city of Ealeigh. It appears from the affidavit of the stenographer that she furnished the evidence complete to defendants’ counsel in Clinton on 16 July, 1921. It does not appear on what date the defendants’ counsel forwarded the papers to counsel in Ealeigh. There is no evidence of any delay in the mail. The counsel in Ealeigh filed his affidavit that he was absent from his office in Ealeigh from 30 July to 15 August, and that after receiving the papers on 15 August, he was unable to see his client, one of the codefendants in this case, until on the following week, owing to his client’s absence from the city and his being busy, and further, that after seeing his client he himself was again called from the city and did not return till 29 August, and upon his return he completed the preparation of the case on appeal and forwarded it to the counsel in Clinton on 1 September, who delivered it the next day to counsel for the plaintiff, who on 12 September notified the counsel for the defendants that they would not accept the case on appeal, but would move to dismiss, under Eule 17, which was done in apt time, and the motion was allowed. The only other allegation the appellants make is that betw.een 2 September, when the case was served, and 12 September, and prior to the receipt of this notice, one of the counsel for the appel*766lants met one of tbe cotinsel for tbe defendants, wbo did not then state to tbe defendants tbat be would move to dismiss tbe appeal, but said be bad not fully examined appellant’s statement of tbe ease on appeal. Tbis was not a waiver of tbe motion to dismiss. Besides, it was not necessary tbat tbe appellee should give any notice of tbe motion to dismiss.

Tbe other matters set forth show, in every particular, a disregard of tbe statutory requirements as to tbe time of service of case on appeal, and in every respect ignored tbe statute as to making up a case on appeal.

Tbe agreement for 30 days in which to serve tbe case on appeal was merely a substitute for tbe 15 days allowed by statute. Tbe statutory requirements as to making up cases on appeal must be strictly complied with except when there is an agreement to extend tbe time, and then only to tbe extent of such agreement. ■

In Hardee v. Timberlake, 159 N. C., 552, where, by consent, tbe appellant was allowed 30 days in which to serve tbe case on appeal, but it was not served till tbe 32d day, tbe appeal was dismissed. In Guano Co. v. Hickes, 120 N. C., 29, where there was a like agreement allowing 30 days but tbe appeal was not served till tbe 31st day, it was dismissed.

Tbe right to appeal is not an absolute right, but is only given upon compliance with tbe requirements of tbe statute, and when these are not observed tbe appeal will be dismissed, unless sufficient cause is shown tbat there was no negligence on tbe part of tbe appellant. Tbe appellee has bis rights, and it is no excuse tbat it was not convenient for tbe appellant or bis counsel to observe tbe requirements of tbe statute.

Tbe appeal will be dismissed, even when there has been sufficient ground to excuse compliance with tbe statute, unless, at tbe first term after tbe trial below and at or before tbe time when tbe appeal should be docketed, tbe appellant shall file a transcript of all tbe record tbat is available and ask for a certiorari to complete tbe transcript or to have tbe case settled. Burrell v. Hughes, 120 N. C., 277, and numerous cases there cited, and cases cited to tbat case in tbe Anno. Ed.

Tbe negligence of counsel in sending up, docketing, and printing tbe transcript is tbat of tbe client, and will not excuse failure to do so. Truelove v. Norris, 152 N. C., 755; Vivian v. Mitchell, 144 N. C., 477, citing numerous cases. See, also, citations to tbat ease in Anno. Ed.

In tbis case tbe appellant’s affidavits disprove any allegation of reasonable ground for not complying with tbe statute. But if there bad been any grounds to excuse tbe failure to serve tbe case on appeal within proper time they have failed to file a transcript of tbe record and move for certiorari. More than tbis, they did not even file a transcript of tbe record proper with tbis motion to reinstate.

Motion denied.