Newman v. Newman, 18 N.C. App. 674 (1973)

July 11, 1973 · North Carolina Court of Appeals · No. 7317DC107

18 N.C. App. 674

JIMMY RAY NEWMAN v. CELATHA GENE NEWMAN

No. 7317DC107

(Filed 11 July 1973)

Appeal and Error § 39 — time for docketing record on appeal

Appeal is subject to dismissal for failure to docket the record on appeal within ninety days after the date of judgment appealed from.

Appeal by plaintiff from Harris, Judge, 24 July 1972 Session of Surry County District Court.

Sometime prior to April 1972 the plaintiff and defendant entered into a separation agreement which provided in part for the payment by the plaintiff to the defendant of $25.00 per week for the support of their four minor children. On 5 July 1972 the plaintiff applied for and obtained an absolute divorce based upon separation of the parties. Defendant was not present nor heard on her two affirmative claims for relief filed in answer to the divorce complaint. On 14 July 1972 the defendant-wife filed a motion in the cause requesting that the case be reopened so that she could be heard on her two affirmative claims for relief. Such motion was allowed, evidence was taken, and the court ordered the plaintiff to pay defendant $200.00 per month for the support of the four minor children born of the parties.

Folger & Folger by Fred Folger, Jr. for plaintiff appellant.

Gardner, Gardner and Bell by Fred L. Johnson for defendant appellee.

CAMPBELL, Judge.

It is imperative that attorneys be familiar with the Rules of Practice in the Court of Appeals of North Carolina as well as with the statutory enactments of this State concerning appellate practice contained in Chapter 1, Article 27 of the North Carolina General Statutes.

Failure to comply with either these Rules or the applicable statutes will subject the appeal to dismissal.

There being no extension of time to docket the record on appeal with this Court in the instant case, Rule 5 of the Court of Appeals requires that the record be docketed within 90 days after the date of judgment appealed from.

Judgment in the instant case was dated 27 July 1972. By virtue of Rule 5 this appeal must have been docketed on or before 25 October 1972; it was not docketed until 4 December 1972. For failure to comply with the Rules of Practice, the appeal may be dismissed. Rule 48.

Nevertheless, we have reviewed the record and find no error. The evidence warrants the court’s findings of fact, and the facts found support the judgment.

Appeal dismissed.

Judges Britt and Baley concur.