C. C. Woods Construction Co. v. Budd-Piper Roofing Co.

265 S.E.2d 506 (1980)

C. C. WOODS CONSTRUCTION COMPANY, INC., Plaintiff,
v.
BUDD-PIPER ROOFING COMPANY, Defendant and Third-Party Plaintiff,
v.
W. Edward JENKINS, Architect, Third-Party Defendant.

No. 7914SC963.

Court of Appeals of North Carolina.

May 6, 1980.

Eugene C. Brooks, III, and Lipton & Mills by Stuart S. Lipton, Durham, for third-party plaintiff-appellant.

Young, Moore, Henderson & Alvis by Charles H. Young, Jr., Raleigh, for third-party defendant-appellee.

HEDRICK, Judge.

The judgment from which the third-party plaintiff appealed was entered on 23 April 1979. On 1 May 1979 the third-party plaintiff filed notice of appeal from the 23 April judgment. On 2 May the third-party plaintiff filed a "motion for new trial" or, "in the alternative, modification of judgment" pursuant to Rule 59, G.S. § 1A-1. Likewise, on 2 May, the third-party plaintiff again gave notice of appeal from the 23 April judgment, and the court entered an order fixing the time for the service of the proposed record on appeal, and for the third-party defendant to serve objections or proposed alternative record. On 15 May the trial judge entered an Order denying the "motion for a new trial" or, "in the alternative, modification of judgment," and stated that the appeal entries previously filed "are to remain in full force and effect and said Order denying [the] motion for a new trial (or, in the alternative, modification of judgment) is hereby appealed from as if said Appeal Entries had been filed subsequent to said Order. . . ." Thereafter, and inexplicably, the trial judge on 30 May filed a second Order wherein he again denied the third-party plaintiff's motion for a new trial or modification of judgment, and on 6 June filed another Order stating that the appeal entries "hereinbefore filed are to remain in full force and effect", and again fixing the time periods for service of the proposed record on appeal.

Whether the notice of appeal from the judgment entered 23 April was given on 1 May or 2 May, as the record plainly demonstrates, or on 15 May, as the appellant contended at oral argument, the record on appeal was not filed in this Court within 150 days from the date of the giving of notice of appeal, as required by Rule 12(a), N.C.Rules App.Proc. Since no extension of time within which to file the record on appeal was sought or granted by this Court, the appeal will be dismissed. Rule 27(c), N.C.Rules of App.Proc. The chronology of events set out above with respect to the giving of the notice of appeal, the making of the motion for a new trial or a modification of judgment pursuant to Rule 59, the orders fixing the time for the service of the record on appeal, and the orders denying the third-party plaintiff's Rule 59 motion, did not and could not extend the time within which the appellant is required to file the record on appeal in this Court after giving notice of appeal from the judgment. See the Drafting Committee Note to App.Rule 27(c).

Appeal dismissed.

ARNOLD and ERWIN, JJ., concur.