There is no case settled by the Judge. There is before us simply the “case on appeal,” prepared by appellant, and the “counter-case” of the appellee. If it appeared that these had been served, or that service had been accepted within.the time allowed by statute, the appellee’s counter-case woul I be held the case on appeal, since the appellant acquiesced in the same by not referring it to the Judge to settle the case. Owens v. Phelps, 92 N. C., 231; Jones v. Call, 93 N. C., 170. But it does not appear from the record that *505 either case on appeal was served in time, and hence the Court must disregard boll), unless such service in time is admitted. Cummings v. Huffman, at this term. As this is not admitted the judgment below must be affirmed, unless there is error upon the face of the record proper and the argument here ■was restricted to that point. Clark’s Code (2d Ed.), 580, and cases there cited.

The only error upon the face of the record which is suggested on the argument, or which appears to us by inspection, is that there is a possible ambiguity or inconsistency in directing the $3,000 purchase-money to be paid into the Clerk’s office, and also directing that upon the payment of said sum by the purchaser to the commissioner, he shall execute to the purchaser a good and sufficient conveyance. It seems to us that the exception is hypercritical. There is but one $3,000 that is claimed. That was directed to be paid by the date mentioned in the judgment, and thereupon the commissioner was directed to convey the title.

No Error.