It appears from affidavits filed in this Court in support of appellant’s motion that the case on appeal has not been agreed upon or settled; that there has been no laches on the part of appellant, but that on the contrary appellant has been diligent in its efforts to get the case on appeal settled in accordance with the statute and with the rules of this Court. The illness and untimely death of the judge has rendered it impossible for appellant to get the case on appeal settled, and it now moves for a new trial.

The motion is allowed, in accordance with the practice in this Court. S. v. Parks, 107 N. C., 821; Parker v. Coggins, 116 N. C., 71. The action must be remanded, in order that there may be a

New trial.