Melton v. Melton

HEDRICK, Judge.

Rule 5 of the Rules of Practice of this Court provides that if the record on appeal is not docketed within 90 days after the date of the judgment appealed from, the case may be dismissed. The record on appeal in the instant case was not docketed in this court within the 90 day period and for failure to comply with this requirement, the appeal is dismissed.

Although the record does contain an order extending the time for service of the case on appeal, nowhere in this order is there an extension of time in which to docket the record on appeal. An extension of the time for service of the case on appeal does not affect the time in which to docket the record on appeal. As stated by Judge Brock, now Chief Judge, in Smith v. Starnes, 1 N.C. App. 192, 160 S.E. 2d 547 (1968) :

“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.”

The appeal is

Dismissed.

Chief Judge Brock and Judge Campbell concur.'