#### W. W. HORTON v. ANNIE E. DAVIS, ROBERT R. DAVIS, PAUL DAVIS and wife, MRS. PAUL DAVIS

No. 7118SC256

(Filed 23 June 1971)

Appeal and error § 39— failure to docket record in apt time

Appeal is dismissed for failure to docket the record on appeal within the 90-day period allowed by Court of Appeals Rule No. 5, no order having been entered extending the time for docketing.

Appeal from Martin, Special Judge, September and October 1970 Sessions, Superior Court of Guilford County.

This is an action in ejectment tried by the court without a jury. The court found facts and entered judgment against the plaintiff, who appealed.

Julian C. Franklin for plaintiff appellant.

Morgan, Byerly, Post and Herring, by J. V. Morgan and J. W. Clontz for defendant appellees.

MORRIS, Judge.

Counsel for plaintiff was diligent in obtaining an order extending the time within which appellant was required to serve his case on appeal. However, no motion was made nor order entered for an extension of the time for docketing the record on appeal. The judgment was entered on 23 October 1970. The record on appeal was not docketed in this Court until 19 February 1971 — well beyond the 90-day period provided by Rule 5, Rules of Practice in the Court of Appeals. For failure to comply with the Rules of this Court, the appeal is dismissed.

Appeal dismissed.

Judges Brock and Hedrick concur.