#### DAVID V. PIKE v. S. B. SEYMOUR, JR., and WALTER L. MIDGETT.

(Filed 24 February, 1943.)

1. Appeal and Error § 10b—

Where the trial court finds that the ease on appeal was not served within the time fixed or allowed, or service within such time waived, an order, directing the appellants’ case on appeal stricken from the files of the cause and the records of the court, is proper.

2. Appeal and Error §§ 10b, 31b—

When appellants’ case on appeal is stricken from the record as not filed in time, on motion in the cause to affirm the judgment below and it appearing that no error exists on the face of the record proper, the judgment is affirmed.

Appeal by defendants from Blaclcstoch, Special Judge, at Chambers in Charlotte, N. 0., 14 December, 1942. From PebquimaNS.

This case was tried before Blackstock, Special Judge, at January Term, 1942, of Perquimans Superior Court. The case was consolidated-for trial with the case of Pierce v. Seymour, Jr., et al. Defendants appealed to the Supreme Court. This case was remanded to the trial judge for additional findings of fact. See the former opinion ante, 42.

The trial court found as a fact that the time for serving case on appeal expired 16 April, 1942; that on 20 April, 1942, plaintiff’s counsel accepted service .of defendants’ statement of case on appeal; but did not at any time accept or agree that defendants’ statement of case on appeal should constitute the case on appeal in the Supreme Court, thereby waiving the time for service; nor did plaintiff’s counsel at any time, in any way or manner, extend or waive the time of service. Thereupon, judgment was entered striking defendants’ statement of case on appeal from the files of said cause and from the records of the court.

Defendants appealed to the Supreme Court.

McMullan & McMullan for plaintiff.

J. Henry Lelloy for defendants.

Denny, J.

Where the trial court finds the case on appeal was not served within the time fixed or allowed, or service within such time waived, an order directing the appellants’ case on appeal stricken from the files of said cause and the records of the court, is proper. Hicks v. Westbrook, 121 N. C., 131, 28 S. E., 188; Roberts v. Bus Co., 198 N. C., 779, 153 S. E., 398. Motion having been made in this cause to affirm the *607judgment below, and it appearing that no error exists on the face of the record proper, the judgment is affirmed. McNeill v. R. R., 117 N. C., 642, 22 S. E., 268; Roberts v. Bus Co., supra.

Affirmed.