Reece v. Reece , 6 N.C. App. 606 ( 1969 )

170 S.E.2d 546 (1969) 6 N.C. App. 606

Angie D. REECE
v.
Ernest V. REECE, Jr.

No. 6926DC517.

Court of Appeals of North Carolina.

November 19, 1969.

William G. Robinson, Strickland & Robinson, Charlotte, for plaintiff appellee.

Robert F. Rush, Charlotte, for defendant appellant.

BROCK, Judge.

Defendant appealed from an order dated and entered 5 June 1969. Therefore, to docket the record on appeal in this Court within ninety days as provided by our Rules, it was necessary for defendant to docket the record on appeal on or before 3 September 1969; unless he obtained an order from the trial tribunal extending the time within which to docket his record on appeal, not to exceed an additional sixty days. Rule 5, Rules of Practice in the Court of Appeals of North Carolina. The record on appeal in this case was docketed 17 September 1969, fourteen days later than allowed by our Rules. The record shows no order from the trial tribunal extending the time to docket the record on appeal. We find only that defendant secured an order extending the time to serve his case on appeal upon the plaintiff.

We reiterate once again what we said in Smith v. Starnes, 1 N.C.App. 192, at pp. 194, 195, 160 S.E.2d 547, at p. 550:

"The time for docketing the record on appeal in the Court of Appeals is determined by Rule 5 supra, and should not be confused with the time allowed for serving case on appeal and the time allowed for serving counter-case or exceptions. The case on appeal, and the counter-case or exceptions, and the settlement of case on appeal by the trial tribunal must all be accomplished within a time which will allow docketing of the record on appeal within the time allowed under Rule 5. The trial tribunal, upon motion by appellant, and upon a finding of good cause therefor, may enter an order extending the time for docketing the record on appeal in the Court of Appeals not exceeding a period of 60 days beyond the 90 days provided by Rule 5. However, this cannot be accomplished by an order allowing additional time to serve case on appeal."

For failure to timely docket the record on appeal this appeal is subject to dismissal ex mero motu; however, we have considered appellant's two assignments of error and find them to be without merit. The action of the trial judge in setting aside a verdict in his discretion is not subject to review on appeal in the absence of an abuse of discretion. Goldston v. Chambers, 272 N.C. 53, 157 S.E.2d 676. The record in this case does not disclose an abuse of discretion by the trial judge. Defendant's exception to the failure of the trial judge to grant his motion for nonsuit presents no question for consideration. The verdict having been set aside and a new trial ordered, the case remains on the civil issue docket for trial de novo, unaffected by the ruling of which defendant seeks to complain. Michaels v. Carson, 4 N.C.App. 417, 166 S.E.2d 845.

Appeal dismissed.

BRITT and VAUGHN, JJ., concur.