Burkhimer v. Coble, 35 N.C. App. 127 (1978)

Jan. 17, 1978 · North Carolina Court of Appeals · No. 7725SC120
35 N.C. App. 127

WALTON PETER BURKHIMER v. J. HOWARD COBLE, N. C. Commissioner of Revenue; B. W. BROWN, Director of Individual Income Tax Division of N.C. Dept. of Revenue; FRED T. TEAGUE, and LOUIS C. WILSON, Field Auditors for N. C. Dept. of Revenue; and HARRY C. HEAVNER, Revenue Collector for N. C. Dept. of Revenue

No. 7725SC120

(Filed 17 January 1978)

Appeal and Error §§ 41, 45— appellate rules mandatory

Plaintiff’s appeal is dismissed for failure to comply with Appellate Rules 11(e) and 28(b)(3) which are mandatory.

APPEAL by plaintiff from Smith (Donald LJ, Judge. Orders entered 14 September 1976 in Superior Court, Caldwell County. Heard in the Court of Appeals 30 November 1977.

This appeal involves a suit filed by plaintiff seeking, inter alia, refund of taxes, damages under 42 USCA § 1983, and damages for alleged illegal acts of defendants in collecting taxes. Plaintiff has appealed from orders granting partial summary judgment in favor of defendants, granting defendants’ request for admission of the genuineness of certain documents, and striking certain of plaintiff’s interrogatories.

L. H. Wall, for the plaintiff.

Attorney General Edmisten, by Special Deputy Attorney General Myron C. Banks, for the defendants.

BROCK, Chief Judge.

The record on appeal in this case was settled on 8 December 1976. The transcript of the record on appeal was certified to this Court by the Clerk of Superior Court, Caldwell County, on 11 February 1977, 65 days after settlement of the record on appeal. Appellate Rule 11(e) requires: “Within 10 days after the record on appeal has been settled . . . the appellant shall present the items constituting the record on appeal to the clerk of superior court for certification.”

Plaintiff has failed to refer us to the pertinent assignments of error and exceptions immediately following each question presented in his brief as required by Appellate Rule 28(b)(3).

*128The North Carolina Rules of Appellate Procedure are mandatory. White v. Lawrence, 33 N.C. App. 631, 236 S.E. 2d 30 (1977). Furthermore, from a cursory reading of the arguments presented in plaintiff’s brief, it appears that this appeal has no merit. However, for failure to comply with the Rules of Appellate Procedure, this appeal is dismissed.

Appeal dismissed.

Judges Martin and Clark concur.