Beck Distributing Corp. v. Imported Parts, Inc.

179 S.E.2d 793 (1971)

10 N.C. App. 737

BECK DISTRIBUTING CORPORATION v. IMPORTED PARTS, INC., Principal (and Maryland Casualty Company, Surety).

No. 7110SC36.

Court of Appeals of North Carolina.

March 31, 1971.

*794 Boyce, Mitchell, Burns & Smith, by Robert E. Smith, Raleigh, for plaintiff appellee.

Harris, Poe, Cheshire & Leager, by W. C. Harris, Jr., Raleigh, for Maryland Casualty Co., appellant.

MALLARD, Chief Judge.

The order of Judge Bailey appealed from is dated 7 July 1970. The record on appeal was docketed in the Court of Appeals on 16 October 1970. Absent a valid order extending the time to docket the record on appeal, the time for docketing the record on appeal in this case expired on 5 October 1970, or 90 days after 7 July 1970. On 16 October 1970 Judge Bailey, upon motion of Surety, entered an order attempting to extend the time for docketing the record on appeal to 16 October 1970. This order is ineffective. After the time for docketing the record on appeal in this court had expired, the trial judge could not then enter a valid order extending the time. In Roberts v. Stewart and Newton v. Stewart, 3 N.C.App. 120, 164 S.E.2d 58 (1968), cert. denied, 275 N.C. 137, it is said:

"* * * The record on appeal must be docketed in the Court of Appeals within ninety days after the date of the judgment, order, decree or determination appealed from. Within this period of ninety days, but not after the expiration thereof, the trial tribunal may for good cause extend the time not exceeding sixty days for docketing the record on appeal. * * *"

However, in this case we treat the appeal as an application for a writ of certiorari, allow it, and consider the case on its merits.

Beck had attached the property of Imported. Beck and Imported agreed to a return of the attached property to Imported upon the execution by Imported of a bond, with adequate surety, in the amount of $16,000. Surety and Imported executed a bond for $16,000, the condition of which was "that if the plaintiff recovers judgment, the defendant shall pay all sums that may be awarded to the plaintiff in this action." The plaintiff recovered judgment for $12,425.64 in a trial found to be free from prejudicial error. The statute, G.S. § 1-440.46(d) (which relates to attachment proceedings), reads:

"Upon judgment in his favor in the principal action, the plaintiff is entitled to judgment on any bond taken for his benefit therein."

By its express terms, the bond signed by Surety in this action was for the benefit of *795 the plaintiff. The judgment did not exceed the amount of the bond, and the trial judge correctly gave judgment against the defendant and Surety.

The order of Judge Bailey denying the motion of Surety is affirmed.

Affirmed.

PARKER and GRAHAM, JJ., concur.