Brooks v. Matthews, 29 N.C. App. 614 (1976)

June 2, 1976 · North Carolina Court of Appeals · No. 7519SC1040

29 N.C. App. 614

RICHARD DENNIS BROOKS v. MICHAEL CLAYTON MATTHEWS

No. 7519SC1040

(Filed 2 June 1976)

Appeal and Error § 14— time for taking appeal

Where an appeal is taken more than ten days after the entry of the judgment appealed from and the time within which an appeal can be taken is not otherwise tolled as provided by G.S. 1-279 and App, R. 3, the appellate court obtains no jurisdiction in the matter and the appeal must be dismissed.

Appeal by plaintiff from Collier, Judge. Judgment entered 17 September 1975 in Superior Court, Randolph County. Heard in the Court of Appeals 8 April 1976.

This is a civil action wherein plaintiff, Richard Dennis Brooks, seeks damages for personal injury allegedly resulting from an automobile collision with defendant, Michael Clayton Matthews, on 20 February 1972. On 7 May 1975 plaintiff took a voluntary dismissal of his action and on 21 August 1975 commenced the action again by filing another complaint. On 29 August 1975 defendant moved to dismiss the action for plaintiff’s failure to pay the costs in the action dismissed on 7 May. From judgment entered on 17 September dismissing the action, plaintiff appealed.

Ottway Burton and Millieent Gibson for plaintiff appellant.

Coltrane and Gavin by W. E. Gavin for defendant appellee.

HEDRICK, Judge.

G.S. 1-279 and Rule 3(c) of the Rules of Appellate Procedure provide that an appeal in a civil action when taken by written notice “must be taken within 10 days after its entry.” The record before us discloses that the judgment from which plaintiff purported to appeal was entered on 17 September and appeal was not taken until 29 September. Where the appeal is taken more than ten days after the “entry” of judgment and the time within which appeal can be taken is not otherwise tolled as provided in G.S. 1-279 and App. R. 3, the appellate court obtains no jurisdiction in the matter and the appeal must be dismissed. See Teague v. Teague, 266 N.C. 320, 146 S.E. 2d 87 (1966) ; Aycock v. Richardson, 247 N.C. 233, 100 S.E. 2d 379 (1957) ; Moore v. John Doe, 19 N.C. App. 131, 198 S.E. 2d 236 (1973).

Appeal dismissed.

Chief Judge Brock and Judge Clark concur.