Phillips ex rel. Johnson v. Wrenn Bros., 12 N.C. App. 35 (1971)

July 14, 1971 · North Carolina Court of Appeals · No. 7115SC303
12 N.C. App. 35
HENRY FIELDS PHILLIPS, Incompetent, by his Guardian, L. C. JOHNSON, Plaintiff v. WRENN BROTHERS, INC., Original Defendant and Third Party Plaintiff, and HENRY ALLEN PHILLIPS and wife, LAURATTA MAE PHILLIPS, Third Party Defendants

HENRY FIELDS PHILLIPS, Incompetent, by his Guardian, L. C. JOHNSON, Plaintiff v. WRENN BROTHERS, INC., Original Defendant and Third Party Plaintiff, and HENRY ALLEN PHILLIPS and wife, LAURATTA MAE PHILLIPS, Third Party Defendants

No. 7115SC303

(Filed 14 July 1971)

Appeal and Error § 39— failure to docket record on appeal in apt time

Appeal is dismissed for failure to docket the record on appeal within 90 days from the date of the judgment appealed from, no order having been entered extending the time for docketing the record on appeal. Court of Appeals Rule No. 5.

Appeal by original defendant from Canaday, Judge, at the November 1970 Session, Chatham Superior Court.

Plaintiff instituted this action to recover for his interest in certain timber allegedly cut by the original defendant from lands in which plaintiff owned an interest. Jury trial was waived and, following a trial, the court found facts, made conclusions of law and entered judgment in favor of plaintiff. The original defendant appealed from the judgment.

Hoyle & Hoyle by J. W. Hoyle for plaintiff appellee.

Dark & Edwards by L. T. Dark, Jr., for defendant appellant.

BRITT, Judge.

The judgment appealed from was entered on 31 August 1970. The record on appeal was docketed in this court on 15 March 1971. Rule 5 of the Rules of Practice in the Court of Appeals requires that the record on appeal, absent an order extending the time, be docketed within 90 days after the date of the judgment or order appealed from. The record before us contains no order extending time for docketing the record on appeal; therefore, for failure to docket the record within the time prescribed by the rules, this appeal is dismissed. Williford v. Williford, 10 N.C. App. 541, 179 S.E. 2d 118 (1971) ; James v. Harris, 9 N.C. App. 733, 177 S.E. 2d 306 (1970) ; Public Service Company v. Lovin, 9 N.C. App. 709, 177 S.E. 2d 448 (1970).

Nevertheless, we have carefully reviewed the record, with particular reference to the questions presented in appellant’s *36brief, and conclude that the result reached by the trial court was proper.

Appeal dismissed.

Judges Morris and Parker concur.