To the certiorari in this case the judge returns that the amended answer has been lost, and his notes of the trial also, and that, in consequence, he is unable to make up or settle case on appeal. The appellant moves thereupon for a new trial. The loss of the amended answer of itself would not support this motion, as it might be supplied by proper proceedings. Nichols v. Dunning, 91 N.C. 4. Nor would the mere fact of the judge's inability to settle the case of itself be sufficient. Simmons v. Andrew, ante, 12. But it appears in (481) addition, in this case, that there has been no laches on the part of the appellant.
Under such circumstances a new trial must be ordered. Burton v. Green,94 N.C. 215; Comrs. v. Steamship Co., 98 N.C. 165.
New trial.
Cited: Ritter v. Grimm, 114 N.C. 374; McGowan v. Harris, 120 N.C. 140;S. v. Higgins, 126 N.C. 1056; S. v. Robinson, 143 N.C. 624.