Brown v. Smith

Court of Appeals of North Carolina

Brown v. Smith

208 S.E.2d 430, 23 N.C. App. 224, 1974 N.C. App. LEXIS 2057

CourtCourt of Appeals of North Carolina

DecidedOctober 2, 1974

DocketNo. 7423DC534

StatusPublished

This text of 208 S.E.2d 430 (Brown v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Smith, 208 S.E.2d 430, 23 N.C. App. 224, 1974 N.C. App. LEXIS 2057 (N.C. Ct. App. 1974).

Pincite

Opinion

BROCK, Chief Judge.

Judgment of the trial court in this case was signed and filed on 24 January 1974. Under Rule 5 the record on appeal must he docketed within 90 days after the date of the judgment appealed from, unless the trial tribunal extends the time, not exceeding an additional 60 days, to docket the record on appeal.

The 90 days provided by Rule 5 expired on 24 April 1974. The record on appeal was not docketed until 8 May 1974.

On 2 May 1974 appellant secured an order from the trial judge purporting to grant appellant an additional 15 days to docket the record on appeal. The trial judge had no authority to extend the time for docketing by an order entered after the expiration of the 90 days allowed by Rule 5. Simmons v. Textile Workers Union, 15 N.C. App. 220, 189 S.E. 2d 556; Beck Distributing Corp. v. Imported Parts, Inc., 10 N.C. App. 737, 179 S.E. 2d 793. At the time the 2 May 1974 order was entered, the appeal was already subject to dismissal for failure to docket on time. The 2 May 1974 order is a nullity.

Appeal dismissed.

Judges Moréis and Martin concur.

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BROCK, Chief Judge.

Judgment of the trial court in this case was signed and filed on 24 January 1974. Under Rule 5 the record on appeal must he docketed within 90 days after the date of the judgment appealed from, unless the trial tribunal extends the time, not exceeding an additional 60 days, to docket the record on appeal.

The 90 days provided by Rule 5 expired on 24 April 1974. The record on appeal was not docketed until 8 May 1974.

On 2 May 1974 appellant secured an order from the trial judge purporting to grant appellant an additional 15 days to docket the record on appeal. The trial judge had no authority to extend the time for docketing by an order entered after the expiration of the 90 days allowed by Rule 5. Simmons v. Textile Workers Union, 15 N.C. App. 220, 189 S.E. 2d 556; Beck Distributing Corp. v. Imported Parts, Inc., 10 N.C. App. 737, 179 S.E. 2d 793. At the time the 2 May 1974 order was entered, the appeal was already subject to dismissal for failure to docket on time. The 2 May 1974 order is a nullity.

Appeal dismissed.

Judges Moréis and Martin concur.

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Bluebook (online)

208 S.E.2d 430, 23 N.C. App. 224, 1974 N.C. App. LEXIS 2057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-smith-ncctapp-1974.

Opinion

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