Lewter v. Herndon

MORRIS, Judge.

Prior to the date set for oral arguments, defendants filed a motion to dismiss the appeal under Rule 5 and Rule 17, Rules of Practice in the Court of Appeals of North Carolina. As grounds for the motion, defendants say that plaintiffs served on defendants’ counsel a proffered statement of case on appeal, and service was accepted on 16 July 1971. On the same day the case on appeal as served was docketed in this Court without knowledge of defendants’ counsel and without any agreement that the transcript which was docketed did in fact constitute the case on appeal. In apt time defendants filed exceptions to the statement of case on appeal, and service thereof was accepted by counsel for plaintiffs. No settlement of the case on appeal has been made by the trial tribunal as provided by G.S. 1-283. No answer has been filed to this motion.

Under the Rules of this Court, plaintiffs’ brief should have been filed on 2 November 1971. No brief has been filed, and on 8 November 1971, defendants moved that the appeal be dismissed under Rule 28, Rules of Practice of the Court of Appeals of North Carolina, for plaintiffs’ failure to file brief.

It appears that both motions are well taken.

Appeal dismissed.

Judges Campbell and Parker concur.