#### W. F. ROGERS v. CITY OF ASHEVILLE.

(Filed 14 December, 1921.)

1. Appeal and Error — Case—Agreement of Connsel — Writing—Rules of Court.

Where a case on appeal to tbe Supreme Court bas not been settled in conformity with tbe procedure in such matters, any agreement for extension of time claimed by tbe appellant must be in writing and signed, as required by Rule 39, 174 N. C., 838.

2. Same — Laches—Stenographer’s Notes — Certiorari—Motions.

Where tbe appellant bas failed to file bis case on appeal within tbe time allowed, and files bis motion for certiorari on tbe ground that the stenographer at tbe trial could not transcribe her notes in time owing to her other duties as court stenographer, tbe reason given is no excuse in law, for the stenographic notes are not indispensable to the settlement of tbe case.

3. Appeal and Error — Docketing Case — Motion to Dismiss — Record Proper.

Where tbe case bas been docketed in tbe Supreme Court within tbe time required, and appellant bas moved for a certiorari, to wbicb be is not entitled, tbe case will not be dismissed, but tbe judgment below will be affirmed if there is no error appearing upon tbe face of tbe record as docketed.

PetitioN by appellant (defendant) for certiorari and motion by plaintiff to dismiss appeal, or affirm tbe judgment.

Jones, Williams & Jones and Wells & Swain for plaintiff.

George Pennell and J. W. Ilaynes for defendant.

Claex, C. J.

This is a petition for certiorari by the defendant, appellant, upon tbe following state of facts: Tbe case was tried at April Term, 1921, of BuNcombe. Verdict on tbe issues against tbe defendant, and judgment. By consent, 45 days were allowed tbe defendant in wbicb to state and serve case on appeal, and plaintiff 45 days thereafter to serve countercase or exceptions. Subsequently, tbe plaintiff extended tbe time for -tbe defendant to serve bis case 30 days, making 75 days in all on tbe expiration of wbicb time tbe appellant did not have bis case ready for service, and tbe appellee, plaintiff, not agreeing to extend tbe-time further, tbe appellant docketed tbe record proper here on 7 November, and when tbe case was reached asked for a certiorari. Tbe appellee, on tbe other band, moved to dismiss tbe appeal or to affirm tbe judgment upon tbe record proper.

It is very desirable that cases on aj)peal should be made up as promptly as possible after tbe case is tried, while tbe facts are fresh in thé minds *597of tbe parties, and there is less probability of a difference in recollection as to what occurred. Under the former practice, before the adoption of the C. C. P., every case on appeal was settled hy the trial judge, but the framers of the Code of Civil Procedure, mindful that Magna Carta had placed a “delay of justice” in the same category with “a denial of justice” against which litigants should be equally guaranteed, provided that “cases on appeal” should be settled by the parties or counsel, and the judge called in only in case of disagreement, thus materially expediting the hearing of appeals by relieving the judge of settling them in many cases, and also fixed 5 days after the adjournment of court as the time in which the appellant must serve his case, and 3 days later for service of countercase or exceptions.

The statute later extended this to 10 days, and still more recently the appellant has been given 15 days to serve the case on appeal, and the appellee 10 days to serve the countercase. It is more than doubtful if this concession to delay was desirable, and has not been productive of much abuse. This Court, recognizing that there might be instances in which a longer time might be necessary, has held valid written agreements of counsel for an extension of time and a more recent statute has permitted the judge, for the first time, to intervene hy giving an extension of time to settle the ease on appeal when counsel cannot agree on this. This would seem to be the limit to which it would be advisable to extend indulgence in the time for settling cases on appeal.

In this case, by consent, 75 days were allowed, and the only excuse given for the case not being served within that time is that the stenographer was busy in court and could not transcribe her notes within the 75 days. The appellee shows, on the contrary, that for more than half of that 75 days there was no term of court in session during which the stenographer was required in court at all, and further, that even during the time in which court was in session there were many days during which the stenographer’s services were not required. But, however that might be, the stenographer’s notes are not the compelling and supreme authority as to what transpired during the trial. The judge in charging the jury, always tells them that their recollection, and not that of the court itself, must govern them as to what was the testimony of the witnesses. And in settling the cases on appeal the first authority is that of counsel themselves in agreeing as to what occurred at the trial as to the evidence, as to the charge, and otherwise, and when they do not agree the judge must settle what really occurred.

Efforts have been made heretofore to make the stenographer’s notes of higher authority than the agreement of counsel, or even the statement of facts as settled by the judge. But on the very first occasion when this view was advanced the Court held, in Cressler v. Asheville, 138 *598 N. C., 485, that when tbe parties cannot agree tbe judge must settle it, saying: “Tbe stenographic notes will be of great weight with tbe judge, but are not conclusive, if be has reason to believe there was error or mistake. Tbe stenographer cannot take tbe place of the judge who is alone' authorized and empowered by tbe Constitution to try tbe cause, and who alone (if counsel disagree) can settle for this Court what occurred during tbe trial. ... Of course, if such notes were conclusive as to tbe evidence, they should be equally so as to what exceptions were taken and rulings made, and all other matters occurring in tbe progress of tbe trial. This would simply depose tbe judge and place tbe stenographer in bis place for all.tbe purposes of an appeal. All tbe care taken to secure men of high integrity and impartiality to discharge tbe functions of tbe important office of judge of tbe Superior Court . . . becomes of secondary importance if a stenographer appointed by tbe clerk of tbe court, and not tbe judge elected by tbe people of tbe State, is to decide what were tbe exceptions, rulings, evidence, and other incidents of a trial. Now, as always, these matters must be settled by tbe judge when counsel disagree. Tbe stenographer’s notes will be of valuable aid to refresh bis memory, but tbe stenographer does not displace tbe judge in any of bis functions.”

In that case we were guarding against tbe threatened unnecessary expense of voluminous transcripts of cases on appeal by dumping into them tbe stenographer’s notes. Now we are threatened with, if possible, a greater evil by tbe opportunity, and indeed tbe inducement to great delays in appeals by making tbe settlement of cases for this Court depend upon tbe convenience or disposition of tbe stenographers who may or may not have other calls upon their time. If we were to yield to this, then, to paraphrase tbe language of Jobnson in regard to Charles XII. of Sweden, litigants would be

“Condemned weary suppliants to wait While ladies interpose and counsel debate.”

This is tbe fourth time at this term that blame for delays to bring up cases in tbe time prescribed by statute has been sought to be charged upon tbe stenographers, to tbe exoneration of counsel, by alleging tbe heavy business requirements of stenographers.

■ We must repeat again that stenographers are a helpful aid, but are not indispensable. They have not been indispensable heretofore, and are not absolutely indispensable now. Tbe calls upon their time cannot be used to increase tbe expense of appeals by dumping their notes into tbe transcript, which we refused to permit in Cressler v. Asheville, supra, nor to excuse, as has been attempted at this term, delays beyond tbe statutory time or tbe time agreed upon by consent, to settle cases on *599appeal. If tbe stenographer or stenographers employed, on any given case, cannot reduce the notes so as to state the evidence in a narrative form or within the prescribed time, they must be dispensed with, or a sufficient number of stenographers employed to accomplish the duty of aiding the court, whose records must not be padded, nor delays in appeals inflicted upon litigants, by a plea that the stenographers employed could not do the work in apt time. Cressler v. Asheville, supra, has been often cited and approved. Bucken v. R. R., 157 N. C., 444; Brazille v. Barytes Co., ib., 460; Overman v. Lanier, ib., 551; Skipper v. Lumber Co., 158 N. C., 323; Brewer v. Mfg. Co., 161 N. C., 212; Bank v. Fries, 162 N. C., 516; S. v. Shemwell, 180 N. C., 722; and more immediately upon this point are S. v. Harris, 181 N. C., 613, and Hotel Co. v. Griffin, ante, 539, and other cases at this term.

Counsel for the plaintiff were liberal in the agreement to extend the time to 75 days, which was two months beyond the statutory time. They deny that they extended it beyond that time, and this Court has uniformly held that when an agreement between counsel is denied it will not be recognized by us unless in writing and filed in the cause, which is the express requirement of our Rule 39, 174 N. C., 838. As stated by us in Graham v. Edwards, 114 N. C., 229, and in the cases there quoted, and in the citations to that ease, in the Anno. Ed., we must strictly adhere to that rule for the very sufficient reason that we have no means and no disposition to pass upon the relative accuracy of the memory of counsel who can so readily avoid such controversies by complying with the rule.

The motion for certiorari must, therefore, be denied. The appeal having been docketed here before the call of the district at this the first term after the trial below, the motion to dismiss must also be denied, but there being no error upon the face of the record as docketed, the judgment below must be

Affirmed.