The Court has also called attention to the fact that the judge below cannot extend the time for service of case and counter-case or for service of notice of appeal, Barber v. Justice, 138 N.C. 22; that while counsel may do it by consent, if there is a dispute between them the court will not attempt to pass upon the veracity of counsel, but if the alleged agreement is denied it will be disregarded, for it was the duty of counsel seeking an indulgence of this kind in derogation of the statute and the rights of the other party to put the agreement in writing. Graham v. Edwards, 114 N.C. 228; Sondley v. Asheville, 112 N.C. 694, and numerous cases citing the same, in Anno. Ed. This case was docketed by the appellee on 27 November, 1916. He did not, however, docket the "transcript on appeal," but attempted to file the original papers from the court below.
Even the appellant is required by the rule to move for a reinstatement of his appeal at that term. Not only is that the requirement of the rule, but it has been so construed to be its meaning in several of our decisions. Benedict v. Jones, 131 N.C. 473; Graham v. Edwards, 114 N.C. 228. The practice in such cases as arise under this rule of the Court is fully stated by the present Chief Justice in Porter v. R. R., 106 N.C. 478, which was followed by Hinton v. Pritchard, 108 N.C. 412; Paine v. Cureton, 114 N.C. 606; Causey v. Snow, 116 N.C. 498, and numerous other cases cited in the note to Porter v. R. R., at marg.
(9) If they do not care to do this, the courts will not pass upon the controversy as to the terms or existence of such agreement." Graham v. Edwards, 114 N.C. 228. In this case there is unfortunately a difference in the recollection of counsel as to what was agreed at the trial of the case, and their affidavits, therefore, are conflicting.
Here, counsel on one side swear that consent was given, and the other side deny this, and the alleged agreement must be disregarded. Rule 39; Sondley v. Asheville, 112 N.C. 694; Graham v. Edwards, 114 N.C. 228. The entry on the docket, "twenty days," means nothing in itself, but if it was an entry the Court was authorized to make, the judge at the next term could draw it out at greater length to make (195) the record speak the truth, but as the only validity it has is as the alleged agreement of counsel, and the context whether it was made by counsel, and its meaning, could only be determined upon conflicting affidavits of counsel, it must be disregarded.
tion unless it is admitted. If it be disputed or denied, the matter ends. (Code Civ. Proc., sec. 283; Rule 30, Superior Court; Transcript, fol. 123; Smith v. Polack , 2 Cal. 92-94; Peralta v. Mariea , 3 Cal. 185; Patterson v. Ely , 19 Cal. 28; Reese v. Mahoney , 21 Cal. 306; Borkheim v. North British etc. Ins. Co ., 38 Cal. 623; Merritt v. Wilcox , 52 Cal. 238; In re Keeler's Will, 23 Abb. N.C. 376; 7 N.Y.S. 199; Marsh v. Lasher , 13 N. J. Eq. 253; Haley v. Eureka County Bank, 20 Nev. 410; Martin v. De Loge, 15 Mont. 343; Haggin v. Lorenz, 13 Mont. 406; Morse v. Budlong, 5 Colo. App. 147; Goben v. Goldsberry , 72 Ind. 44; Louisville etc. R. R. Co. v. Boland , 70 Ind. 595; Lee v. Atlanta Street R. R. Co ., 91 Ga. 215; Moran v. Mackey , 32 Minn. 266; Haylen v. Missouri P. R. R. Co ., 28 Neb. 660; Palatka etc. R. R. Co. v. State , 23 Fla. 550; 11 Am. St. Rep. 395; Graham v. Edwards , 114 N.C. 228; Le Duc v. Moore , 113 N.C. 275; Hemphill v. Morrison , 112 N.C. 758; Graves v. Hines , 106 N.C. 324; Sondley v. Asheville , 112 N.C. 694; Council Bluffs etc. Co. v. Jennings, 81 Iowa 470; State v. Stewart, 74 Iowa 337; Hiller v. Landis, 44 Iowa 223; Dixon v. Brophey, 29 Iowa 460; Doerr v. South Western Mut. Life Assn ., 92 Iowa 39.) Rule 30 of the superior court requires all agreements between attorneys in respect to the proceedings in a cause to be in writing, and the court and the suitor are equally bound by this rule; it must be construed the same as a statutory provision would be construed. (Hanson v. McCue , 43 Cal. 178; In re Jessup , 81 Cal. 483.)
In any event, since the appeal should (279) have been docketed here at the first term beginning after the trial below, it was the duty of the appellant at such first term to file all of the transcript that was available, and have asked for a certiorari to complete the transcript. His failure to do so is a lack of diligence and forfeits his appeal. Brown v. House, 119 N.C. 622; Haynes v. Coward, 116 N.C. 840; Graham v. Edwards, 114 N.C. 228; Sanders v. Thompson, 114 N.C. 282; S. v. James, 108 N.C. 792; Collins v. Faribault, 92 N.C. 310, and there are still other cases. There are some matters at least which should be deemed settled and this is one of them. Certiorari denied and appeal dismissed.
Mitchell v. Haggard, 105 N.C. 173. If an alleged verbal agreement of counsel is denied (as in this case) the court has uniformly refused the invidious task of weighing the affidavits of counsel. Sondley v. Asheville, 112 N.C. 694; LaDuc v. Moore, 113 N.C. 275; Graham v. Edwards, 114 N.C. 228; Roberts v. Partridge, 118 N.C. 355. Rule 39 of this Court, which has long been in force, is as follows. "The Court will not recognize any agreement of counsel in any case unless the same shall appear in the record, or in writing filed in the cause in this Court.
CLARK, J. This is not the case of a verbal agreement of counsel, which if denied the Court will not consider. Rule 39; Sondley v. Asheville, 112 N.C. 694; Graham v. Edwards, 114 N.C. 228. But here both sides agree substantially as to what passed.
Assuming, then, for the sake of argument only, that the plaintiff's allegations are true, that the counsel represented the defendant, we cannot grant his petition, for the reason that the waiver is denied and the countercase was neither duly served nor accepted in writing. State v. Price, 110 N.C. 599; Forte v. Boone, 114 N.C. 176; Sondley v. Asheville, 112 N.C. 694; Graham v. Edwards, 114 N.C. 228, and cases cited; Rule 39 of Supreme Court. 1. It appears that certain lands were partitioned among the plaintiffs and confirmed by decree of the court, and that in the division a mistake was made by the draftsman of the commissioners' report in allotting lot No.
Rule 17. Though as the appellee did not do this, the appellant could have docketed the appeal at any time during said Fall Term. All this was summarized in Porter v. R. R., 106 N.C. 478, and has been repeatedly affirmed (498) since. Hinton v. Pritchard, 108 N.C. 412; Graham v. Edwards, 114 N.C. 228; Paine v. Cureton, ib., 606. Not having done this, it is too late to docket or ask for a certiorari at this term. S. v. Freeman, 114 N.C. 872, and cases there cited.