Counsel for both sides were evidently under tbe impression tbat 22 January, 1935, was tbe last day, prescribed by tbe court, for tbe service of appellant’s statement of case on appeal. Tbey dealt witb tbe matter on tbat day upon tbis assumption. Tbe discovery, subsequently made perhaps, tbat tbe judge left tbe bench on Friday, instead of Saturday, of tbe second week of tbe term, disclosed 21 January as tbe last day for tbe service of appellant’s case. Hardee v. Timberlake, 159 N. C., 552, 75 S. E., 799; May v. Ins. Co., 172 N. C., 795, 90 S. E., 890; Guano Co. v. Hicks, 120 N. C., 29, 26 S. E., 650; Delafield v. Const. Co., 115 N. C., 21, 20 S. E., 167. Hence, tbe order striking out tbe purported statement of case on appeal is supported by tbe decision in Hicks v. Westbrook, 121 N. C., 131, 28 S. E., 188.
Tbe circumstances may have justified tbe appellant in applying for a writ of certiorari to bring up bis case, but tbis was not done. Smith v. Smith, 199 N. C., 463, 154 S. E., 737; Roberts v. Bus Co., 198 N. C., 779, 153 S. E., 398.
There being no case on appeal, legally settled, does not, however, entitle tbe appellee to have tbe appeal dismissed. Roberts v. Bus Co., supra. Non constat tbat error may not appear on tbe face of tbe record proper. Wallace v. Salisbury, 147 N. C., 58, 60 S. E., 713. For tbis reason, tbe appellant is permitted to pursue tbe appeal, even after bis right to a “case on appeal” has been lost. Roberts v. Bus Co., supra.
In such case, however, unless error appear on tbe face of tbe record proper, it is tbe usual practice to affirm tbe judgment on motion of appellee. McNeill v. R. R., 117 N. C., 642, 23 S. E., 268.
Tbe same parties were before us on another point in Edwards v. Perry, 206 N. C., 474.
Affirmed.