Osborne v. Hendrix, 4 N.C. App. 114 (1969)

Feb. 26, 1969 · North Carolina Court of Appeals · No. 6923SC133

4 N.C. App. 114

JESSIE Mc. OSBORNE v. ROCKY HENDRIX

No. 6923SC133

(Filed 26 February 1969)

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

Where appellant fails to docket record on appeal within the time provided by the rules of the Court of Appeals, the appeal will be dismissed. Rule of Practice in the Court of Appeals No. 5.

Appeal by plaintiff from Collier, J., August 1968 Civil Session, Superior Court of AlleghaNY.

This is an action to recover damages to plaintiff’s automobile allegedly resulting from the negligence of defendant. At the conclusion of all the evidence, the court allowed defendant’s motion for judgment as of involuntary nonsuit. Plaintiff appealed.

McElwee and Hall by John E. Hall for plaintiff appellant.

W. G. Mitchell for defendant appellee.

Morris, J.

This action was tried at the August 1968 Civil Session of Alle-ghany Superior Court. Judgment of nonsuit was signed by the court on 27 August 1968 and filed on that date. Although counsel for the parties agreed to the case on appeal on 1 November 1968, the record on appeal was not docketed here until 13 January 1969. Rule 5, Rules of Practice in the Court of Appeals of North Carolina, requires that the record on appeal be docketed within ninety days after the date of the judgment unless an extension of time shall have been granted by the trial tribunal. The record before us does not contain an order extending the time within which to docket.

For failure to docket the record on appeal within the time prescribed by our rules, this appeal is

Dismissed.

Campbell and BROCK, JJ., concur.