Coffey v. Vanderbloemen, 4 N.C. App. 504 (1969)

April 30, 1969 · North Carolina Court of Appeals · No. 6925DC50

4 N.C. App. 504

IRA L. COFFEY v. JOHN A. VANDERBLOEMEN, JR.

No. 6925DC50

(Filed 30 April 1969)

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

Where record on appeal was docketed in the Court of Appeals 141 days after the date of judgment appealed from, and there was no order by the trial tribunal extending the time for docketing, the Court of Appeals ex mero motu will dismiss the appeal for failure to comply with the Rules. Court of Appeals Rules Nos. 5 and 48.

Appeal by plaintiff from Evans, J., at the 28 June 1968 Session of Caldwell District Court.

This is an action to recover for personal injuries allegedly sustained by plaintiff as the result of a collision between an automobile operated by plaintiff and an automobile operated by defendant. The usual issues of negligence, contributory negligence and amount of damages were submitted to the jury who answered the issues of negligence and contributory negligence in the affirmative. From judgment in favor of defendant predicated thereon, plaintiff appealed.

Ted S. Douglas for plaintiff appellant.

W. G. Mitchell for defendant appellee.

Britt, J.

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.

The judgment entered in this action is dated 28 June 1968, and the record contains no order extending the time for docketing the record on appeal. In fact, the record discloses that at the time plaintiff’s counsel gave notice of appeal, the trial judge stated, “Notice of appeal is noted and you are granted ninety days in which to appeal.”' The record was filed in this Court on 19 November 1968 —144 days; after the date of judgment. For failure of the plaintiff to comply with the rules, this Court, ex mero motu, dismisses the appeal. Kelly v. Washington, 3 N.C. App. 362, 164 S.E. 2d 634.

Nevertheless, we have reviewed the record, particularly with regard to the assignments of error brought forward and argued in plaintiff’s brief, but find no error sufficiently prejudicial to warrant a new trial.

Appeal dismissed.

Mallard, C.J., and Parrer, J., concur.