Kelly v. Washington, 3 N.C. App. 362 (1968)

Dec. 31, 1968 · North Carolina Court of Appeals · No. 688SC283

3 N.C. App. 362

JUNIUS KELLY v. DANIEL WASHINGTON and Wife, LUCILLE WASHINGTON

No. 688SC283

(Filed 31 December 1968)

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

The record on appeal must be docketed in the Court of Appeals witbin ninety days after the date of the judgment appealed from; provided, the trial tribunal may, for good cause, extend the time not exceeding sixty days for docketing the record on appeal. Court of Appeals Rule No. 5.

2. Appeal and Error § 39— failure to aptly docket record on appeal

Where the judgment appealed from was entered on 15 February 1968, and the trial court thereafter extended the time for docketing the record on appeal until 1 July 1968, defendant’s appeal docketed on 2 July 1968 is dismissed by the Court of Appeals ex mero motu for failure to comply with the rules. Court of Appeals Kules Nos. 5 and 48.

Appeal by defendant Daniel Washington from Braswell, J., at the January-February 1968 Civil Session of WayNE Superior Court.

This is an action on contract brought by plaintiff to recover $2,025.00, plus interest, which he alleges is due him by defendants as balance for his services rendered in connection with the construction of an apartment building in the City of Goldsboro.

Defendants answered and also filed a counterclaim against the plaintiff, alleging breach of contract on the part of plaintiff and praying for the recovery of $6,307.24.

During the course of the trial, the court dismissed the counterclaim and also dismissed plaintiff’s action as to the feme defendant.

Three issues relating to existence of a contract, breach of contract, and amount of damages, if any, were submitted to and answered by the jury in favor of plaintiff. From judgment entered on the verdict for $2,025.00, plus interest and costs, defendant Daniel Washington appealed.

Smith & Everett by W. Harrell Everett, Jr., for plaintiff appellee.

Whitted & Cherry by Earl Whitted, Jr., for defendant appellant.

Britt, J.

[1] Rule 5 of the Rules of Practice in the Court of Appeals of North Carolina requires that the record on appeal be docketed in this Court within ninety days after the date of the judgment, order, decree, or determination appealed from; provided, the trial tribunal may, for good cause, extend the time not exceeding sixty days, for docketing the record on appeal. Rule 48 provides that if the rules of this Court are not complied with, the appeal may be dismissed.

[2] The judgment entered in this action is dated 15 February 1968. Thereafter, Braswell, J., entered an order extending the time for docketing the record on appeal for thirty days after 31 May 1968. The effect of the order was to extend the time for docketing the record on appeal until 30 June 1968. Inasmuch' as that date fell on Sunday, the defendant had through Monday, 1 July 1968, within which to docket the record on appeal. It was not docketed until 2 July 1968, and for failure of the defendant to comply with the rules, this Court, ex mero motu, dismisses the appeal.

Nevertheless, we have carefully considered the record and the briefs, with particular reference to the two assignments of error brought forward in defendant’s brief, and find that there was no prejudicial error committed by the trial judge.

The appeal is

Dismissed.

Broce and Parrer, JJ., concur.