In re the Custody of Maxwell, 7 N.C. App. 59 (1969)

Dec. 17, 1969 · North Carolina Court of Appeals · No. 693DC533
7 N.C. App. 59
IN THE MATTER OF THE CUSTODY OF LAURA PATTERSON MAXWELL and HAROLD MAXWELL, III

IN THE MATTER OF THE CUSTODY OF LAURA PATTERSON MAXWELL and HAROLD MAXWELL, III

No. 693DC533

1. Appeal and Error § 39— failure to docket record on appeal in apt time

Appeal is dismissed for failure to docket the record on appeal until more than a month after tbe time for docketing had expired.

2. Appeal and Error § 44— failure to file brief

Appellant’s exceptions and assignments of error are deemed abandoned where appellant fails to file a brief as required by Court of Appeals Rule No. 28.

Appeal from Phillips, District Judge, at the 24 April 1969 Session of Ckaven County District Court.

The respondent father appealed from an order entered in this cause ordering that he pay to the petitioner, his former wife, the sum of $300.00 to be used to make payments on the trailer-home in which she and the minor children live. The court found that the petitioning mother was without any money with which to make these payments and that the trailer-home was in imminent threat of being repossessed by the mortgagee unless past due payments were made. The court refused to otherwise increase provisions for support set forth in the original order entered on 22 August 1964.

LeRoy Scott for movant appellee.

Graham, J.

[1] The order appealed from was entered 30 May 1969. No order extending the time for docketing the case on appeal in this court appears in the record before us and therefore the respondent had ninety days from 30 May 1969 in which to docket the record on appeal. Rule 5, Rules of Practice in the Court of Appeals of North Carolina. The record on appeal was not docketed in this court until 1 October 1969 which was more than a month after the time for docketing had expired. This appeal is therefore subject to dismissal. Osborne v. Hendrix, 4 N.C. App. 114, 165 S.E. 2d 674; City of Randleman v. Stevenson, 4 N.C. App. 113, 165 S.E. 2d 693; State v. Cline, 4 N.C. App. 112, 165 S.E. 2d 691.

[2] The respondent has also failed to file a brief as required by *60Rule 28 of this court. His exceptions and assignments of error are therefore abandoned.

For failure to docket the record on appeal within the time required, the petitioner’s motion to dismiss the appeal is allowed. Appeal dismissed.

Campbell and Paricer, JJ., concur.