Owens v. Boling

163 S.E.2d 396 (1968) 274 N.C. 374

Charles D. OWENS and wife Edna Ogle Owens
v.
Roy BOLING, Ruby L. Boling, W. D. Boling and Agnes Boling.

No. 28.

Supreme Court of North Carolina.

October 9, 1968.

Hamrick & Hamrick, Rutherfordton, for plaintiff appellees.

Sullivan & Horne and Frink & Gore, Southport, for defendant appellants.

PER CURIAM:

When the order from which defendants gave notice of appeal was entered on 25 September 1967, appeals from the Twenty-Ninth District had already been called at the 1967 Fall Term of this Court. Therefore, appellants were required to docket their appeal not later than "at the next succeeding term," that is, the Spring Term 1968. Rule 5, Rules of Practice in the Supreme Court, 254 N.C. 785; State v. Farmer, 188 N.C. 243, 124 S.E. 562. The deadline for docketing appeals from the Twenty-Ninth District at the Spring Term was 10:00 a. m. on Tuesday, 9 January 1968. Notwithstanding, appellants ignored that term of Court and waited until 24 July 1968 to docket their appeal. This delay carried the case beyond the Spring Term.

Counsel may not waive the rules of this Court. In re Suggs, 238 N.C. 413, 78 S.E.2d 157; Jones v. Jones, 232 N.C. 518, 61 S.E.2d 335; State v. Butner, 185 N.C. 731, 117 S.E. 163. Consequently, it was beyond the authority of the attorneys to bypass a term. Mimms v. Seaboard Air Line R. R., 183 N.C. 436, 111 S.E. 778. "The rules of practice in the Supreme Court are mandatory, not directory, and must be uniformly enforced. * * * Neither the judges, nor the solicitors, nor the attorneys, nor the parties have any right to ignore or dispense with the rules requiring such docketing within the time prescribed. * * * If the rules are not observed the Court may ex mero motu dismiss the appeal." Stone v. Ledbetter, 191 N.C. 777, 779, 133 S.E. 162, 163. In Kernodle v. Boney, 260 N.C. 774, 133 S.E.2d 697, the defendant-appellant's delay in docketing carried the case beyond the Spring Term at which it should have been heard. This Court, ex mero motu, dismissed that appeal. Appellants' appeal in this case is likewise dismissed.

We note, however, that the dismissal works no injury to defendants. The ruling of the trial judge, from which defendants gave notice of appeal, was clearly correct; the action does not affect the title to real estate. Rose's Stores, Inc. v. Tarrytown Center, Inc., 270 N.C. 201, 154 S.E.2d 320; White v. Rankin, 206 N.C. 104, 173 S.E. 282; Causey v. Morris, 195 N.C. 532, 142 S.E. 783; Griffin v. Barrett, 176 N.C. 473, 97 S.E. 394; Eames v. Armstrong, 136 N.C. 392, 48 S.E. 769.

Appeal dismissed.