State v. Lewis

176 S.E.2d 1 (1970)

9 N.C. App. 323

STATE of North Carolina v. Albert Johnson LEWIS.

No. 7021SC507.

Court of Appeals of North Carolina.

August 26, 1970.

*2 Atty. Gen. Robert B. Morgan and Asst. Atty. Gen. Millard Rich, for the State.

Wilson, Morrow & Boyles, by John F. Morrow, Winston-Salem, for defendant appellant.

MALLARD, Chief Judge.

The case is not properly before us. Therefore, the questions set forth in the assignments of error are not properly presented. It is established law in North Carolina that the rules governing appeals are mandatory, not directory. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970).

Judge Johnston, the trial judge, on the date of the judgment, 12 March 1970, gave the defendant thirty days to prepare and serve his statement of case on appeal and allowed the State thirty days thereafter to serve countercase. On 10 April 1970 Judge Crissman entered an order, upon defendant's motion, allowing the defendant an additional thirty days in which to serve his statement of case on appeal. Thereafter, on 12 May 1970, upon defendant's motion, Judge Crissman entered another order allowing the defendant an additional thirty days in which to serve his statement of case on appeal. Defendant did not serve his statement of case on appeal but tendered it, and service thereof was accepted by the district solicitor on 9 June 1970. This was not within the time allowed by the order of Judge Johnston. Judge Crissman, who was not the trial judge, did not have authority to enter either of these orders *3 allowing the defendant additional time in which to serve the statement of his case on appeal. Under the applicable statutes, G.S. § 15-180 and G.S. § 1-282, only the judge who tried the case can extend the time for serving the statement of the case on appeal. State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969). The statutes do not authorize the trial judge to grant appellant another extension of time to serve statement of case on appeal after the expiration of the session at which the judgment was entered. State v. Atkinson, supra. However, the trial judge is given authority to do this under Rule 50 of the Rules of Practice in the Court of Appeals which reads as follows:

"If it appears that the case on appeal cannot be served within the time provided by statute, rule, or order, the trial judge (or the Chairman of the Industrial Commission or the Chairman of the Utilities Commission as the case may be) may, for good cause and after reasonable notice to the opposing party or counsel, enter an order or successive orders extending the time for service of the case on appeal and counter-case or exceptions to the case on appeal, provided this does not alter the provisions of Rule 5 relating to the docketing of the record on appeal."

In the case of Roberts v. Stewart and Newton v. Stewart, 3 N.C.App. 120, 164 S.E.2d 58 (1968), cert. denied, 275 N.C. 137, this court said:

"In the absence of a case on appeal served within the time fixed by the statute, or by valid enlargement, the appellate court will review only the record proper and determine whether errors of law are disclosed on the face thereof. * * *"

We have reviewed the record proper, and no prejudicial error is disclosed on the face thereof.

No error.

PARKER and HEDRICK, JJ., concur.