The opinion
There was a judgment in favor of the plaintiff, from which the defendant appealed to this Court, of which he gave due notice, and filed the undertaking required. The clerk of the Superior Court refused to send up the transcript, for the reason given by him, that there was no case on appeal signed by the judge.
Upon affidavits filed, a certiorari was awarded at the last term of this Court, and in return thereto a transcript of the record has been sent up without any statement of the case.
It is shown by affidavits that a statement of the case, as (166) required by the law regulating appeals, was made up in apt time by the counsel for the appellant, and duly served on the counsel for the appellee; that it was not returned within the time prescribed; that at the request of one of the counsel for the appellee, it was agreed that no advantage should be taken of any delay, and that if it did not get to the *Page 154
Supreme Court in time for the October Term, it should be placed on the docket at the February Term, and that the appellee should have a reasonable length of time to file exceptions to appellant's statements. Counsel for the appellee retained the statement of the case till January, 1887, when it was returned by one of the counsel for the appellee to one of the counsel for the appellant, with a counter-statement, which was not agreed to; and on the second Saturday of the January Term, 1887, of Pitt Superior Court, the counsel gave the case on appeal, with the counter-statement, to one of the counsel for the appellee.
Repeated applications were made to appellee's counsel, and to each of them, for the case on appeal, with the response that they had been unable to find it, though they had looked therefor. It further appears from information, that owing to the lapse of time, the judge who tried the cause has forgotten the exceptions made, and that it would be impossible to get a new case on appeal correctly stated. It appears that the defendant has been active and vigilant in efforts to get the statement that was lost, as appears from the affidavits by some one of the counsel for the plaintiff, and that it is now impossible to prepare a substitute.
The defendant is entitled to his appeal — it was lost by no laches on his part of which the plaintiff can complain. Has he any remedy? To remand it would be in vain, for it appears that it would be impossible for the judge to settle it upon disagreement.
This Court has on several occasions awarded new trials when the judge below has gone out of office without settling the case on appeal, and the appellant was guilty of no laches. There is no other way (167) by which the appellant can have the benefit of an appeal. Isler v. Haddock , 72 N.C. 119 ; Mason v. Osgood, ibid. , 120; Simonton v. Simonton , 80 N.C. 7 ; Adams v. Reeves , 74 N.C. 106 ; Jones v. Holmes , 83 N.C. 108 ; Sanders v. Norris , 82 N.C. 243 .
In S. v. Powers , 3 Hawks, 376 , it appears that the notes of the trial had been lost, whereby the judge was unable to state the case, and a new trial was granted. See, also, Hamilton v. McCullock , 2 Hawks, 29 .
In this case the appellant is entitled to a new trial.
Venire de novo .
Cited: Briggs v. Jervis, post , 457; Graves v. Hines , 106 N.C. 324 , 327 ; Owens v. Paxton, ibid. , 481; Clemmons v. Archbell , 107 N.C. 654 ; S. v. Robinson , 143 N.C. 624 . *Page 155