State v. Ellisor , 4 N.C. App. 514 ( 1969 )

167 S.E.2d 35 (1969) 4 N.C. App. 514

STATE of North Carolina
v.
Riley Lee ELLISOR.

No. 6914SC179.

Court of Appeals of North Carolina.

April 30, 1969.

Atty. Gen. Robert Morgan, by Deputy Atty. Gen. Harrison Lewis and Trial Atty. I. B. Hudson, Jr., for the State.

Bryant, Lipton, Bryant & Battle by James B. Maxwell, Durham, for defendant appellant.

MORRIS, Judge.

Judgment in this action was signed and entered on 1 November 1968. The record on appeal was not docketed in this Court until 10 February 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." Osborne v. Hendrix, 4 N.C.App. 114, 165 S.E.2d 674.

Rule 19(a), Rules of Practice in the Court of Appeals of North Carolina, requires that the record on appeal shall contain "The pleadings on which the case was tried, the issues, and the order, judgment, decree, or determination appealed from shall be included in the record on appeal in all cases, and the charge of the Court where there is exception thereto." Although defendant has excepted to portions of the charge and has argued these exceptions in his brief, the charge is not included in the record before us.

We have, nevertheless, carefully examined the questions raised by the defendant in his brief, most of which are evidentiary, and find no prejudicial error.

For failure to comply with the rules of this Court, the appeal is dismissed. Rule 48, Rules of Practice in the Court of Appeals of North Carolina.

MALLARD, C. J., and CAMPBELL, J., concur.