Opinion
No. 742SC550
Filed 3 July 1974
1. Appeal and Error 39 — failure to docket record in apt time Appeal is subject to dismissal where the record on appeal was not docketed in apt time. Court of Appeals Rule 5.
2. Appeal and Error 39 — extension of time for docketing — extension of time to serve case — extension to undesignated date An extension of time to docket the record on appeal is not accomplished by an extension of time to serve the case on appeal or by an order purporting to extend the time for an indefinite period or to an undesignated date.
3. Automobiles 57 — intersection accident — jury question Jury question was presented in an action arising from an intersection accident where the intersection was controlled by a traffic light and each party contended he had the green light.
APPEAL by defendant from Martin (Perry), Judge, 7 January 1974 Session of Superior Court held in MARTIN County.
Gurganus Bowen by Edgar J. Gurganus; and Griffin Martin by Clarence W. Griffin for plaintiff appellee.
Milton E. Moore for defendant appellant.
This litigation arises from a two-car collision which occurred at an intersection. Each party contended the other was negligent. The jury returned verdict for the plaintiff, and from judgment on the verdict, defendant appealed.
The judgment appealed from was dated 10 January 1974. The record on appeal was docketed in this Court on 14 May 1974. No order of the trial tribunal extending the time for docketing appears in the record. For failure of appellant to docket within apt time, the appeal is subject to dismissal. Rule 5, Rules of Practice in the Court of Appeals.
The record does contain orders dated 11 March and 11 April 1974 extending the time for serving the case on appeal, but an extension of time to docket the record on appeal is not accomplished by an extension of time to serve case on appeal. Kurtz v. Insurance Co., 6 N.C. App. 625, 170 S.E.2d 496; Smith v. Starnes, 1 N.C. App. 192, 160 S.E.2d 547. Each of the orders referred to contains the statement that "the time for docketing said case is extended to ___." Under Rule 5, the trial tribunal may, for good cause, extend the time for docketing the record on appeal for a period not exceeding sixty days, but this cannot be accomplished by an order purporting to extend the time for an indefinite period or to an undesignated date.
Nevertheless, we have reviewed such of appellant's assignments of error as are brought forward in his brief and find no prejudicial error. Traffic at the intersection where the collision occurred was controlled by a traffic light, and each party contended he had the green light. The case was one for the twelve and on sharply conflicting evidence their verdict was for the plaintiff.
Appeal dismissed.
Judges CAMPBELL and HEDRICK concur.