Upon the facts appearing upon the face of the record, pertinent statutes and decisions of this Court indicate error in the order of the court below striking the statement of case on appeal as served by appellants. C. S., 643, 644; Hodges v. Lassiter, 94 N. C., 294; Transportation Co. v. Lumber Co., 168 N. C., 60, 84 S. E., 54; S. v. Moore, 210 N. C., 686, 188 S. E., 421.
The statute, C. S., 643, provides that appellant shall cause to be prepared a concise statement of case on appeal and prescribes what it shall embody, and that a copy shall be served on respondent, appellee, within *434time given by statute or extended by order of court. It further provides that within time given in like manner respondent shall return the copy with his approval or with specific amendments endorsed or attached. If the case be approved by respondent, it shall be filed with the clerk as a part of the record. If not returned with objections within the time prescribed, or allowed by the court, the case served shall be deemed approved. Carter v. Bryant, 199 N. C., 104, 155 S. E., 602. But the provisions of O. S., 644, specify that if the case on appeal be returned by the respondent, with objections as prescribed, the appellant shall immediately request the judge to fix a time and place for settling the case before him. If, however, appellant delays longer than fifteen days, unless time be enlarged by agreement after respondent serves his counter-ease or exceptions, to make such request, and delays for such period to mail the case and countercase or exceptions to the judge, the exceptions filed by respondent shall be allowed, or the countercase served by him shall constitute the case on appeal. In this connection it i's held in Chauncey v. Chauncey, 153 N. C., 12, 68 S. E., 906, that the effect of the above limitation is to substitute “fifteen days” in lieu of “immediately” as the time in which appellant, after receipt of respondent’s exceptions or countercase, can make his request of the judge.
If the request be made by appellant, the statute further provides that “the judge shall forthwith notify the attorneys of the parties to appear before him for that purpose at a certain time and place, within the judicial district . . .,” and “at the time and place stated, the judge shall settle and sign the case . . .” However, “if the judge has left the district before the notice of disagreement he may settle the case without returning to the district.”
In the present case appellants served a statement of case on appeal within the ninety days allowed therefor by order of court. Thereupon, not electing to permit by lapse of time the case as served to become the case on appeal, as was done in Sloan v. Assurance Society, 169 N. C., 257, 85 S. E., 216; Layton v. Godwin, 186 N. C., 312, 119 S. E., 495; and Carter v. Bryant, supra, appellee filed and served objections thereto. Thereupon appellant had the right to request the judge to settle the case, and having complied with the provisions of the statute as to requesting the judge to fix time and place for that' purpose and forwarding to him the case on appeal and objections so filed, it became the duty of the judge to fix a time and place for settling the case on appeal, and, at that time and place to settle and sign the case. The failure of the judge to settle the case on appeal instead of dismissing that served by appellants is error.
“A party is entitled to a writ of certiorari when, and only when, the failure to perfect the appeal is due to some error or act of the court or its officers, and not to any fault or neglect of the party or his agent.” *435 Womble v. Gin Co., 194 N. C., 577, 140 S. E., 230; S. v. Angel, 194 N. C., 715, 140 S. E., 727; S. v. Moore, supra.
Under tbis principle, appellants in tbe present case appear to be entitled to certiorari to tbe end that tbe judge, after notice of time and place fixed tberefor as provided in tbe statute, may now “settle tbe case.” Chauncey v. Chauncey, supra.
Certiorari allowed.