Kelly v. Washington , 3 N.C. App. 362 ( 1968 )

164 S.E.2d 634 (1968) 3 N.C. App. 362

Junius KELLY
v.
Daniel WASHINGTON and wife, Lucille Washington.

No. 688SC283.

Court of Appeals of North Carolina.

December 31, 1968.

Smith & Everett, by W. Harrell Everett, Jr., Goldsboro, for plaintiff appellee.

Whitted & Cherry, by Earl Whitted, Jr., Goldsboro, for defendant appellant.

BRITT, Judge.

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 15 February 1968. Thereafter, Braswell, J., entered an order extending the time for docketing the record on appeal for thirty days after 31 May 1968. The effect of the order was to extend the time for docketing the record on appeal until 30 June 1968. Inasmuch as that date fell on Sunday, the defendant had through Monday, 1 July 1968, within which to docket the record on appeal. It was not docketed until 2 July 1968, and for failure of the defendant to comply with the rules, this Court, ex mero motu, dismisses the appeal.

Nevertheless, we have carefully considered the record and the briefs, with particular reference to the two assignments of error brought forward in defendant's brief, and find that there was no prejudicial error committed by the trial judge.

The appeal is

Dismissed.

BROCK and PARKER, JJ., concur.