#### H. J. CATER AND H. J. CATER PAINTING CONTRACTOR, INC. v. ZURICH INSURANCE COMPANY

No. 7226SC244

(Filed 26 April 1972)

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

Appeal is subject to dismissal where the record on appeal was not docketed within 90 days from the date of the judgment appealed from and no extension of time for docketing appears in the record. Court of Appeals Rules 6 and 48.

Appeal by plaintiffs from McLean, Judge, 11 October 1971 Schedule “B” Non-Jury Session of Superior Court held in MECK-LENBURG County.

Plaintiff sought to recover on a multi-peril insurance policy issued by the defendant to the plaintiffs. The parties stipulated the facts and agreed that “the court may proceed to adjudicate and determine this case as a matter of law on the basis of the facts” set forth in the stipulation.

Charles B. Merryman, Jr., for plaintiff appellants.

Craighill, Rendleman & Clarkson by J. B. Craighill for defendant appellant.

MALLARD, Chief Judge.

The judgment appealed from is dated and filed 21 October 1971. The record on appeal was docketed in this court on 25 January 1972. This docketing of the appeal was not within the ninety days from the date of the judgment as required by Rule 5 of the Rules of Practice in the Court of Appeals. No extension of time for docketing as permitted by Rule 5 appears in this *283record. For failure to docket in time, the appeal is subject to being dismissed under Eule 48. However, before dismissing the appeal, we have examined the record and are of the opinion that under the stipulated facts, the plaintiffs are not entitled to recover and that Judge McLean was correct in so holding.

Appeal dismissed.

Judges Morris and Parker concur.