The plaintiff moves in this Court to strike out from tbe record the case on appeal on the ground that it was not served in time, and to affirm the judgment. The defendant moves for a certiorari in order that the case on appeal may be settled, and filed affidavits showing an agreement of one of the counsel for the plaintiff extending the time for service of case on appeal.

No affidavit of counsel with whom the agreement is alleged to have been made has been filed.

The motion of the plaintiff is denied and the motion for a certiorari is allowed because, while we will not pass on affidavits and determine whether an oral agreement which is denied has been made we do consider affidavits showing an agreement, which are uncontradicted. Sondley v. Asheville, 112 N. C., 694.

The plaintiff is allowed twenty days after this opinion is certified to the Superior Court to serve his case on appeal, or exceptions to the defendants’ case.