This case came up on the appellant's appeal, the appellee's counter case not having been served in time.
The defendant moved for a certiorari to send up the appellee's case as the case on appeal because the appellant had not sent the papers to the judge to be settled on appeal. The appellee's counsel filed an affidavit that there was an oral agreement between himself and the counsel for the appellant to waive the stipulation as to the time of serving the countercase. The appellant's counsel filed counter-affidavits denying such agreement. According to the settled practice of this Court, we cannot decide when the recollection of counsel in such matters differs. Such agreements should always be in writing to prevent such controversies as this. When this is not done, the Court will decline to consider the alleged agreement at all.
In Graham v. Edwards, 114 N.C. 230, the Court said: "We again repeat, as was lately said in Sondley v. Asheville, 112 N.C. 694: `It is to be hoped that hereafter counsel will in every instance put their agreements in writing or have them entered of record, when for any reason they may think best to depart from the plain provisions (219) of the statute. If they do not care to do this, the courts will not pass upon controversies as to the terms or existence of such agreements.' Our brethren of the bar owe it to themselves and to the courts to avoid bringing such controversies hereafter before the courts. Their experience as lawyers must impress upon them the treachery of memory among the very best of men. If not disposed *Page 178 to guard against differences of recollection by the easy mode of reducing agreements to writing, or having them entered on the minutes, the courts have no process to gauge the accuracy of their respective recollections." This case has often been cited since. See citations to this case in the Anno. Ed. of 114 N.C. 230.
The defendant further contends that his counter-case was served in time under the agreement of record. This agreement was that the "appellant's case should be served in thirty days and the appellee's in thirty days thereafter." Court adjourned on 27 June. The appellant's case on appeal was served on 27 July. The appellee's counter-case was served on 27 August, which, there being thirty one days in July, was the 31st day thereafter, and too late. The appellee contends that under Revisal, 887, as to the computation of time, "excluding the first day and including the last," the day (27 July) on which the appellant's case was served should not be counted and that the next day (28 July) should be considered the first day and also excluded, and therefore service of the counter-case on 27 August was in time. This is ingenious, but not sound. The first day on which the counter-case could have been served was 27 July, the day on which the appellant's case was served on the appellee, and this is excluded. While it was not probable that the appellee would serve his counter-case on that day, still had he done so it would have been legal. The reason the first day is excluded is because it is usually only part of a day.
To give the appellee the addition of another day by excluding, in addition, 28 July also, would reverse all our holdings, in numerous cases. For instance, when court adjourned on 27 June, if no notice of appeal was then given, the appellant could have given it "in ten days thereafter. " In making the computation, 27 June, the day of adjournment, would be excluded, and notice must have been given, at the latest, (220) some time on 7 July. He would not have been allowed to consider 28 June as the first day and exclude that also, so as to make service on 8 July sufficient. The service of process must be made ten days before the return day, which is on Monday of court. Hence service on Friday is sufficient, because, excluding that day and including Monday, there are ten days. Upon the rule contended for by the appellee of excluding the first day of the ten days, service would have to be made on Thursday.
In numerous cases where by agreement "thirty days to serve case of appellant and thirty days thereafter to serve counter-case," the same computation that we hold in this case has always been observed. Mitchell v.Haggard, 105 N.C. 173; Hardee v. Timberlake, 159 N.C. 552. The first day on which the act could have been done, which here was on *Page 179 27 July, is excluded and thirty full days, counting 28 July as one of them, expired 26 August. There must always be some time specified either by statute or agreement, and the failure to observe the time is fatal, whether it is by one day or more. If the specific time is to be exceeded, there is no rule to measure such time that can be allowed in excess. There is an exception when there is fraud or misrepresentation, which is not alleged here, or a waiver, which cannot be shown if denied, unless the waiver is in writing.
The case must therefore be heard upon the appellant's case on appeal which is sent up in the record.
Motion denied.