LEDUC v. MOORE

Certiorari — Lost Appeal — Conflicting Statements of Counsel.

Where the petition for a certiorari is based upon the allegation that in the court below plaintiff's counsel orally accepted notice of petitioner's appeal and extended the time for stating the case, and it is conceded that the record in the court below contains no entries as to such agreement, and the plaintiff's counsel denies the same, this Court will not undertake to decide between the conflicting statements of counsel, but will adhere strictly to Rule No. 39 of the Supreme Court.

BURWELL, J.

The petitioner bases his application for a writ of certiorari upon the allegation that in the court below plaintiff's counsel orally accepted notice of his appeal and extended the time for stating the case. It is conceded that the record in that court does not show that an appeal was asked at the trial, or that any notice of an appeal was waived or accepted, or that the time for stating the case was extended. The plaintiff's counsel denies that he made any such agreement. His denial puts an end to the matter, for we cannot undertake to decide between them, but must adhere strictly to the rule of this Court (No. 39) and follow the decisions heretofore made in the like cases, the latest of which is Sondley v. Asheville, 112 N.C. 694.

Motion denied.

Cited: Smith v. Smith, 119 N.C. 313.