Coffey v. Vanderbloemen

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167 S.E.2d 36 (1969)

4 N.C. App. 504


No. 6925DC50.

Court of Appeals of North Carolina.

April 30, 1969.

*37 Ted S. Douglas, Lenoir, for plaintiff appellant.

W. G. Mitchell, North Wilkesboro, for defendant appellee.

BRITT, Judge.

Rule 5 of the Rules of Practice in the Court of Appeals of North Carolina requires that the record on appeal be docketed in this Court within ninety days after the date of the judgment, order, decree, or determination appealed from; provided, the trial tribunal may, for good cause, extend the time not exceeding sixty days, for docketing the record on appeal. Rule 48 provides that if the rules of this Court are not complied with, the appeal may be dismissed.

The judgment entered in this action is dated 28 June 1968, and the record contains no order extending the time for docketing the record on appeal. In fact, the record discloses that at the time plaintiff's counsel gave notice of appeal, the trial judge stated, "Notice of appeal is noted and you are granted ninety days in which to appeal." The record was filed in this Court on 19 November 1968144 days after the date of judgment. For failure of the plaintiff to comply with the rules, this Court, ex mero motu, dismisses the appeal. Kelly v. Washington, 3 N.C. App. 362, 164 S.E.2d 634.

Nevertheless, we have reviewed the record, particularly with regard to the assignments of error brought forward and argued in plaintiff's brief, but find no error sufficiently prejudicial to warrant a new trial.

Appeal dismissed.

MALLARD, C. J., and FRANK M. PARKER, J., concur.