#### WACHOVIA BANK & TRUST CO., Executor, v. W. L. MILLER.

(Filed 16 December, 1925.)

Appeal and Error’ — Case—Laches—Certiorari.

Where the appellant has pursued his right of appeal to the Supreme Court in accordance with the requirements in such cases, and through no laches or neglect of his, his case has not been docketed within the time required, upon his motion in the Supreme Court duly made and in apt time, a *certiorari*will be granted.

Appeal by defendant from *Stack, J.,*at February Term, 1925, of BuNcombe.

Petition for *certiorari,*made by defendant at tbe present term of Court in order to preserve bis right of appeal and to bave tbe case beard in its regular order at tbe next succeeding term.

*F. W. Thomas for defendant, petitioner.*

*Bourne, Parker & Jones for plaintiff, respondent.*

Stacy, C. J.

Tbis case was tried at tbe February Term, 1925, of Buncombe Superior Court, before bis Honor, A. M. Stack, judge presiding, and from a judgment in favor of plaintiff, tbe defendant appealed. Tbe appeal could bave been beard under Eule 5 (185 N. C., 788) at tbe last term, but it was properly brought to tbe present term of tbe Supreme Court.

Tbe judge, upon notice that counsel were unable to agree upon a statement of tbe case on appeal, set 13 April, 1925, as tbe time for settling tbe case before him. By consent, tbis was changed to 25 April. • Counsel for both sides appeared before tbe judge and argued tbe exceptions filed by plaintiff to tbe defendant’s statement of case on appeal: Tbe judge allowed some of tbe exceptions, indicating bis rulings by certain entries upon tbe margin of tbe exceptions, but bis signature appears at no place thereon. It seems to bave been tbe understanding that defendant’s counsel was to redraft bis statement of case on appeal, inserting plaintiff’s exceptions as allowed by tbe judge. Tbis be undertook to do, but tbe judge declined to approve it, thinking that be bad signed tbe original statement on 25 April, when tbe plaintiff’s exceptions were passed upon, and be was not certain as to whether tbe case, as redrafted, conformed to tbe rulings made at that time; hence be did not wish to sign a second statement of tbe case as be understood it. Thereupon, on 17 November, 1925, tbe judge addressed a letter to tbe clerk of tbe Superior Court of Buncombe County, directing him to, insert tbe charge *776and tbe entire evidence of one of tbe witnesses (after reducing it to narrative form) in tbe “Case on Appeal” as previously signed by bim. Tbe clerk certifies tbat be bas never seen tbe case on appeal, as mentioned by tbe judge in bis letter, and tbat none of tbe counsel in tbe case bas been able to furnish bim with it. It is agreed tbat tbis statement cannot be found.

On Tuesday, 8 December, 1925, upon *the*call of tbe docket from tbe 19tb District to wbicb tbe case belongs, defendant, appellant, moved for a *certiorari*in tbis Court so as to preserve bis right of appeal, pending tbe final settlement of tbe case by tbe judge. It would seem tbat tbe defendant is entitled to tbe writ, for no case on appeal bas been settled by tbe judge as required by C. S., 644, and we cannot say, from tbe record now before us, tbat appellant bas lost bis right of appeal by laches. Conceding tbat tbe judge may bave signed tbe original statement of case on appeal, directing certain evidence and bis charge to be inserted therein, as be thinks be did, still tbis was not a compliance with tbe provisions of tbe statute. *Gaither v. Carpenter,*143 N. C., 240. Appellant is entitled to a writ of *certiorari*where bis failure to perfect bis appeal is due to some error or act of tbe court or its officers, and not to any fault or neglect of bis own or tbat of bis agent. *Winborne v. Byrd,*92 N. C., 7; *Johnson v. Andrews,*132 N. C., 380.

Tbe judges of our Superior Courts bave all found tbe task of settling cases on appeal quite exacting, and tbe means or assistance provided for such work noticeably deficient, nevertheless *ita lex scripta est.*

Let tbe writ issue, to tbe end tbat tbe case on appeal may be settled as tbe law directs.

Petition allowed.