Ross v. Sampson

166 S.E.2d 499 (1969) 4 N.C. App. 270

Julius ROSS
v.
Flossie SAMPSON.

No. 6914SC111.

Court of Appeals of North Carolina.

April 2, 1969. Certiorari Denied May 19, 1969.

Brooks & Brooks, by Eugene C. Brooks, III, Durham, for plaintiff-appellee.

Pearson, Malone, Johnson & DeJarmon, by W. G. Pearson, II, Durham, for defendant-appellant.

CAMPBELL, Judge.

The judgment appealed from was signed by Judge Clark and filed on 19 September 1968. The record on appeal was docketed by the defendant in this Court on 2 January 1969. Ninety days from the date of this judgment expired on 18 December 1968. The defendant did not procure an extension of time in which to docket the record on appeal. Therefore, this appeal may be dismissed under Rule 48 of the Rules of Practice in the Court of Appeals for failure to comply with Rule 5.

On 23 December 1968 the plaintiff duly filed a motion in accordance with Rule 17 to docket and dismiss the appeal for failure to comply with Rule 5. The defendant filed an answer to this motion. In support of the contention that the motion should be denied, counsel for the defendant relies upon an order procured from Judge Clark which extended the time for serving the case on appeal upon the plaintiff. However, counsel for the defendant has confused the time allowed for serving a case on appeal with the time allowed for docketing a record on appeal in this Court. As pointed out by the following language of Brock, J., in Smith v. Starnes, 1 N.C. App. 192, 160 S.E.2d 547, the two time periods are entirely different.

"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 countercase or exceptions. The case on appeal, and the countercase 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."

Counsel for the defendant also relies upon the fact that Rule 5 provides:

"In order for an appeal to stand for hearing at any call of any session of this Court, the record on appeal must be docketed at least twenty-eight days before the call of the district to which the case belongs, and if so docketed, shall be heard at the next ensuing call of the district, unless for cause it is continued."

However, this twenty-eight day rule is a separate and distinct rule, which does not abrogate the ninety day requirement. It applies only after the ninety day requirement has been complied with. Therefore, if a record on appeal is properly docketed under this ninety day requirement and if it is "docketed at least twenty-eight days before the call of the district to which the case belongs", it will be heard in this Court at the next ensuing call of that district. If a record on appeal is properly docketed, but it is docketed within twenty-eight days of "the call of the district to which the case belongs", it will be heard in this Court at the second call of that district after the date of docketing.

Despite the failure of the defendant to comply with the Rules of Practice and the motion filed by the plaintiff, we have nevertheless considered the errors assigned by the defendant. First, we hold that upon the evidence presented by the plaintiff, he was entitled to have the case submitted to the jury.

"It is well established in this jurisdiction that upon motion to nonsuit, the plaintiff's evidence is taken as true and considered in the light most favorable to him, giving him the benefit of every fact and inference of fact pertaining to the issues which may be reasonably deduced from the evidence, and defendant's evidence which tends to impeach or contradict plaintiff's evidence is not considered. It is elementary that discrepancies and contradictions even in plaintiff's evidence are matters for the jury and not the judge." Williams v. Hall, 1 N.C. App. 508, 162 S.E.2d 84.

Second, we hold that, in the absence of any objection or tender of other issues by the defendant, the issues submitted to the jury were sufficient to enable the jury to make a factual determination. Third, we hold that the charge of the trial court, when considered in its entirety, did not contain any error prejudicial to the defendant.

Affirmed.

BRITT and MORRIS, J J., concur.