Reap v. City of Albemarle , 16 N.C. App. 171 ( 1972 )

GRAHAM, Judge.

The judgment appealed from is dated 2 February 1972. The record on appeal was docketed in the Court of Appeals on 16 June 1972. Absent a valid order extending the time to docket, the time for docketing the record on appeal in this case expired on 2 May 1972, or 90 days after 2 February 1972. Rule 5, Rules of Practice in the Court of Appeals. On 14 May 1972, appellants obtained from Judge Collier an order purporting to extend the time for docketing the record on appeal until 15 June 1972. After the time for docketing the record on appeal in this Court had expired, the trial judge could not then enter a valid order extending the time. In Roberts v. Stewart and Newton v. Stewart, 3 N.C. App. 120, 164 S.E. 2d 58 (1968), cert. denied, 275 N.C. 137, the rule is stated as follows:

“ * * * The record on appeal must be docketed in the Court of Appeals within ninety days after the date of the judgment, order, decree or determination appealed from. Within this period of ninety days, but not after the expiration thereof, the trial tribunal may for good cause extend the time not exceeding sixty days for docketing the record on appeal. * * * ” (Emphasis added.)

The order purporting to extend the time for docketing in this case is ineffective. Even so, appellants did not docket their case within the extension of time provided in the order. Moreover, their brief was not timely filed and defendant has moved that the appeal be dismissed pursuant to Rule 28, Rules of Practice in the Court of Appeals.

For failure to comply with the Rules of Practice in this Court, appellants’ appeal is dismissed. Before dismissing the appeal, however, we reviewed appellants’ contentions. It is our opinion that, based upon the state of the record before the trial judge, defendant was entitled to summary judgment. Waldrop v. Brevard, 233 N.C. 26, 62 S.E. 2d 512.

Appeal dismissed.

Judges Parker and Vaughn concur.