Campbell v. McNeil

BRITT, Judge. For failure to comply with the rules of this court, defendants’ appeal is dismissed. Rule 21 of the Rules of Practice in the Court of Appeals requires that appellants set out in the record on appeal their exceptions to the proceedings, rulings or judgments of the court, briefly and clearly stated and numbered. Defendants failed to do so in this appeal. Rule 19(c) of the Rules of Practice requires that all exceptions relied upon be grouped and separately numbered immediately before the signature to the record on appeal. Defendants did not meet this requirement. An assignment of error is ineffectual if not based on a proper exception. Bost v. Bank, 1 N.C. App. 470, 162 S.E. 2d 158 (1968). See Midgett v. Midgett, 5 N.C. App. 74, 168 S.E. 2d 58 (1969), cert. den. 275 N.C. 595 (1969). Even after a meticulous voyage of discovery through the record the only two exceptions noted in the entire record would seem to refer to the court’s refusal to admit certain testimony (R. pp. 45, 47) but the record does not reveal what the excluded evidence would have been; therefore, it is impossible for the court to determine if its exclusion was prejudicial. Gibbs v. Light Co., 268 N.C. 186, 150 S.E. 2d 207 (1966); Payne v. Lowe, 2 N.C. App. 369, 163 S.E. 2d 74 (1968). We also note that the judgment in this case was entered on 1 November 1971 and the record on appeal was not docketed [561] until 21 March 1972, some 141 days later. Rule 5 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, “provided, the trial tribunal may, for good cause, extend the time not exceeding sixty days for docketing the record on appeal.” The record reveals an order extending the time for docketing 20 days but we find no order extending the time to docket the record on appeal 51 days. There are two orders extending the time to serve the case on appeal but an order extending the time to serve case on appeal does not have the effect of extending the time to docket the appeal. Keyes v. Oil Co., 13 N.C. App. 645, 186 S.E. 2d 678 (1972); Horton v. Davis, 11 N.C. App. 592, 181 S.E. 2d 781 (1971). For failure to docket within the time permitted by the rules of this court, the appeal should be dismissed. Owens v. Boling, 274 N.C. 374, 163 S.E. 2d 396 (1968); Harrell v. Brinson, 8 N.C. App. 341, 174 S.E. 2d 142 (1970). Although for the reasons stated we are dismissing the appeal, we have nevertheless carefully reviewed the record but perceive no prejudicial error. Appeal dismissed. Chief Judge Mallard and Judge Campbell concur.