after stating tbe material facts of tbe case: First. As to tbe motion to dismiss tbe appeal. ¥e have decided in several cases, and very recently in Brown v. Taylor, 173 N. C., 700 (citing Sondley v. Asheville, 112 N. C., 694), tbat we will not bear counsel, on matters of controversy between them, as to an. extension of time for preparing and serving a case on appeal, but tbis rule does not apply, where tbe appellant alleges in an affidavit, or duly verified statement, tbat there was an agreement for an extension of tbe time, and tbis affidavit is not disputed .by the oath of tbe appellee, wbo, therefore, has waived any irregularity or defect in tbe order for an extension made by tbe judge, if there be such, by agreeing to further extension to 16 October. This case cannot be distinguished from Brown v. Taylor, supra, which will appear by tbe following short recital of its facts and tbe decision of tbe Court therein: “Tbe plaintiff moved in tbis Oourt to strike out from tbe record tbe case on appeal on tbe ground tbat it was not served in time, and to affirm tbe judgment. Tbe defendant moves for a certiorari in order tbat tbe case on appeal may be settled, and filed affidavits showing an agreement of one of tbe counsel for tbe plaintiff extending tbe time for service of case on appeal. No affidavit of counsel witb whom tbe agreement is alleged to have been made has been filed. Tbe motion of tbe plaintiff is denied, and tbe motion for a certiorari is allowed, because while we will not pass on affidavits and determine whether an oral *392agreement which is denied has been made, we do consider affidavits showing an agreement, which are uncontradicted.” This motion is therefore denied.
Second. As to the other question. It appears that there was much irregularity in the proceedings of the Superior Court, and we may do injustice to one or the other of the parties and may not reach the merits of this case unless we disregard what has been done since the judge considered and passed upon the excej>tions to the referee’s report and filed the tentative judgment. There surely has been a misunderstanding between the court and the defendant, as far as appears, and it would not be just to hold the judgment conclusive under the circumstances. The appellant may well have been misled, and says he was, by the failure to give him the promised notice. The learned judge endeavored to rectify the mistake which resulted from his inadvertence, and the appellant should not be made to suffer on account of it, as the exceptions present questions worthy of serious consideration. If the allegations are true, there has been no fair opportunity to be heard fully on the exceptions to the report, which is appellant’s right. Besides, the judge’s affirmance of the report, as to the facts found by the referee, will not be reviewed here, as we have so often held, and this would prejudice the appellant, if it is to stand, and he cannot be heard fully upon such findings.
It is true that a judge cannot extend the time of an appellant for filing his case on appeal, except by consent, but consent is presumed if the order for an extension is filed, or is of record. Woodworking Co. v. Southwick, 119 N. C., 611; Henry v. Hilliard, 120 N. C., 479.
The Court will therefore set aside all the proceedings since the hearing upon the exceptions, and it is directed to hear and pass upon the defendant’s exceptions, after notice to the parties, and to proceed thereafter according to law, and the course and practice of the court, and for this purpose we remand the case.
Remanded.
Under the circumstances of this case, we think the costs should be taxed against the defendant, and it is so ordered.