State ex rel. Simmons v. Johnson, 14 N.C. App. 168 (1972)

March 29, 1972 · North Carolina Court of Appeals · No. 7215SC179

14 N.C. App. 168

STATE OF NORTH CAROLINA ex rel C. A. SIMMONS v. WILBUR JOHNSON and wife, CLAUDINE C. JOHNSON

No. 7215SC179

(Filed 29 March 1972)

Appeal and Error §§ 39, 41— failure to comply -with Rules — dismissal of appeal

Appeal is dismissed for failure to comply with the Rules of Practice in the Court of Appeals where no document included in the record shows a filing date, the proceedings are not set forth in the record in the order in which they occurred, and the record was not docketed within the time allowed by the Rules. Court of Appeals Rules 5 and 19.

Appeal by defendants from Friday, Judge, 28 August 1971 Session, Superior Court, Chatham County.

This is an action brought under the provisions of G.S. 19-2 to enjoin and have abated a nuisance alleged to exist upon premises of defendants. The jury answered the issue in favor of plaintiff, and from judgment entered on the verdict, defendants appealed.

Gunn and Messick, by Robert L. Gunn and Paul S. Messick, Jr., for plaintiff appellee.

Seawell, Pollock, Fullenwider, Van Camp and Robbins, by H. F. Seawell, Jr., for defendant appellants.

MORRIS, Judge.

Plaintiff has moved that defendants’ appeal be dismissed for failure to comply with the rules of this Court. Plaintiff’s position is well taken. Defendants have apparently failed to read Rule 19, Rules of Practice in the Court of Appeals of North Carolina. No document included in the record shows a filing date. The record contains the proceedings in this order: evidence, order extending time to docket and time to serve case, complaint, answer, restraining order, order continuing restraining order, judgment, assignments of error, charge of the court, acceptance of service, and agreement of counsel. We refer appellants to State v. Harris, 10 N.C. App. 553, 180 S.E. 2d 29 (1971). The purported assignments of error, which appear before the charge of the court, do not refer to the exception or exceptions upon which they are based. Additionally, although defendants were granted the maximum time allowed for docketing the record on appeal, they failed to docket the record within the time allowed. Rule 5, Rules of Practice in the Court of Appeals of North Carolina. For failure to comply with the Rules of this Court, the appeal is dismissed.

We have, nevertheless, carefully considered the record and defendants’ purported assignments of error. No prejudicial error appears.

Appeal dismissed.

Chief Judge Mallard and Judge Parker concur.