Brown v. . Taylor

Decided February 28, 1917

Supreme Court of North Carolina · decided 1917-02-28

<p>Appeal and Error- — Service of Case — Extension of Time — Written Agreement —Unanswered Affidavit.</p> <p>The ruling that a certiorari will not he allowed in the Supreme -Court to bring up a record on the ground that the agreement to extend the time for serving case was not reduced to writing, has no application where the applicant files his aflidavit to the effect that the time had been extended and the case served therein, and it is not denied by counter affidavit; and motion to dismiss the appeal will be denied.</p>

Cited by 2 later decisions — most recently May 1976

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1917-02-28

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Per Curiam.

¶1 The plaintiff moves in this Court to strike out from tbe record the case on appeal on the ground that it was not served in time, and to affirm the judgment. The defendant moves for a certiorari in order that the case on appeal may be settled, and filed affidavits showing an agreement of one of the counsel for the plaintiff extending the time for service of case on appeal.

¶2 No affidavit of counsel with whom the agreement is alleged to have been made has been filed.

¶3 The motion of the plaintiff is denied and the motion for a certiorari is allowed because, while we will not pass on affidavits and determine whether an oral agreement which is denied has been made we do consider affidavits showing an agreement, which are uncontradicted. Sondley v. Asheville, 112 N. C., 694.

¶4 The plaintiff is allowed twenty days after this opinion is certified to the Superior Court to serve his case on appeal, or exceptions to the defendants’ case.