Public-domain · open source
OpenJurist

3 N.C. App. 362

164 S.E.2d 634

Kelly v. Washington

Court of Appeals of North Carolina

Decided December 31, 1968

Court of Appeals of North Carolina · decided 1968-12-31

Cited by 12 later decisions — most recently May 1970

12 state decisions

Key passage — most relied on by later courts

““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 settle ment 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.””

quoted by 2 later decisions, including State v. Fulk, State v. Brigman

Good law ✅— No negative treatment on recordhow we know

Decided 1968-12-31

View the full empirical analysis of this case →

Britt, J.

¶1 Rule 5 of the Rules of Practice in the Court of Appeals of North Carolina requires that the record on appeal be docketed in this Court within ninety days after the date of the judgment, order, decree, or determination appealed from; provided, the trial tribunal may, for good cause, extend the time not exceeding sixty days, for docketing the record on appeal. Rule 48 provides that if the rules of this Court are not complied with, the appeal may be dismissed.

¶2 The judgment entered in this action is dated 15 February 1968. Thereafter, Braswell, J., entered an order extending the time for docketing the record on appeal for thirty days after 31 May 1968. The effect of the order was to extend the time for docketing the record on appeal until 30 June 1968. Inasmuch' as that date fell on Sunday, the defendant had through Monday, 1 July 1968, within which to docket the record on appeal. It was not docketed until 2 July 1968, and for failure of the defendant to comply with the rules, this Court, ex mero motu, dismisses the appeal.

¶3 Nevertheless, we have carefully considered the record and the briefs, with particular reference to the two assignments of error brought forward in defendant’s brief, and find that there was no prejudicial error committed by the trial judge.

¶4 The appeal is

¶5 Dismissed.

Broce and Parrer, JJ., concur.
/3/ncapp/362 · .json · Public domain