Our general statute governing tbe settlement and service of cases on appeal (C. S., see. 643) makes provision as follows:
“Tbe appellant shall cause to be prepared a concise statement of tbe case, embodying tbe instructions of tbe judge as signed by him, if there be an exception thereto, and tbe request of tbe counsel of tbe parties for instructions if there be any exception on account of tbe granting or withholding thereof, and stating separately, in articles numbered, tbe errors alleged. A copy of this statement shall be served on tbe respondent witbin fifteen days from tbe .entry of tbe appeal taken; witbin ten days after such service tbe respondent shall return tbe copy, with bis approval or specific amendments indorsed or attached; if tbe case be approved by tbe respondent, it shall be filed with tbe clerk as a part of tbe record; if not returned with objections witbin tbe time prescribed, it shall be deemed approved.”
And in tbe decisions construing tbe section it has been heretofore held tbat tbe time fixed by this statute for settlement and service of a case could only be changed by agreement of tbe parties, and tbat tbe *535trial court itself was without power to change or modify the statutory period or to change or interfere with the agreement the parties may have made on the subject. Lindsay v. Knights of Honor, 172 N. C., 818; Cozart v. Assurance Co., 142 N. C., 522; Barber v. Justice, 138 N. C., 20.
And it is further held that where exceptions or a countercase have not been properly made or served within the time specified, the appellant’s case shall be deemed approved and constitute the proper case on appeal for this Court — a ruling that is in accord with the express provisions of the statute. Barrus v. R. R., 121 N. C., 504; C. S., sec. 643, and citing among other cases McNeill v. R. R., 117 N. C., 642; Forte v. Boone, 114 N. C., 176, to the effect that the failure to except or serve a countercase withiu the time required is not cured because the judge has thereafter undertaken to settle the case. .This being the position that has hitherto prevailed, the Legislature of 1921, considering that it was not well that the trial court should be without any control or power in the premises, amended this section (643) by adding thereto a proviso, as follows: “Provided, that the judge trying the case shall have the power in the exercise of his discretion to enlarge the time in which to serve statement of case on appeal and exceptions thereto or counter-statement of case.” Laws 1921, ch. 97.
In the exercise of the powers so conferred, the court in the present case fixed the time for preparation and service of appellant’s case at twenty days,, allowing twenty days thereafter for service of exceptions or countercase.
It will be noted that while the amendment .referred to allows the trial judge in his discretion to fix the time for the preparation and service of the case and countercase, this being at times necessary to the seemly and efficient disposition of the matter, it does not otherwise modify or purport to modify the statute; and, therefore, whether the time allowed be that fixed by order of court, or, in the absence of such order, by agreement of the parties or in accordance with the law, unless a counter-case is served or exceptions duly made within the time required, the case of appellant shall stand approved as the proper case on appeal. And we do not .approve the position contended for, that, the amendment of 1921 confers upon the trial judge the right at any time or place to change the time fixed upon by the statute. As a general rule, judgments and orders substantially affecting the rights of parties to a cause pending in the Superior Court at term must be made in the county and at the term when and where the question is presented, and our decisions on the subject are to the effect that, except by agreement of the parties or by reason of some express provision of law, they cannot be entered otherwise, and assuredly not in another district and without notice to the parties interested. Cox v. Boyden, 167 N. C., 321; Bank v. Peregoy, *536147 N. C., 293; Parker v. McPhail, 112 N. C., 502; McNeil v. Hodges, 99 N. C., 248; Bynum v. Powe, 97 N. C., 374.
True, in section 644, C. S., the judge, under differing circumstances as therein set forth, may settle a case on appeal at any place within the district, on proper notice, and at times out of the district, but, as shown by a perusal of the section, that power does not arise to him except by agreement of the parties or when the countercase or exception had been made by appellee within the time “as prescribed.” And an order fixing the time under the amendment should, as stated, be made at the term when the question is presented, so that the parties may then be advised of their rights in the matter.
The countercase, therefore, having been tendered after the time fixed by the judge’s order, the case of appellant, being prepared and served within the time, becomes the proper case, and, in connection with the record, may alone be considered in determining the rights of the parties involved in the appeal. In that aspect it is conceded by the Attorney-General that reversible error has been shown, it appearing that on the trial the solicitor was allowed, over defendant’s objection, to make adverse comment on the fact that the defendant did not take the stand as a witness in his own behalf, and also as to the bad character of the defendant as a substantive fact tending to show guilt, when defendant had not himself put his character in evidence on the issue, both of which objections must be sustained under our statute and decisions appertaining to the subject. S. v. Traylor, 121 N. C., 674; C. S., sec. 1799.
We consider it not improper to note' that neither of these exceptions are presented in the case as settled by the careful and able judge who presided at the trial; but, for the reasons heretofore given, we are restricted to the facts as set forth in appellant’s case on appeal, and the cause has been determined on the exceptions therein presented. So considered, defendant is entitled to a new trial, and it is so ordered.
New trial.