#### ROY BRAXTON JAMES v. GREENWAY, INC.

No. 725SC726

(Filed 20 December 1972)

Appeal and Error § 39 — failure to file record on appeal in apt time

Appeal is dismissed for failure to file the record on appeal within ninety days after the date of the order appealed from. Court of Appeals Rule 5.

Appeal by plaintiff from an Order of Wells, Judge, 8 May 1972 Session of New Hanover Superior Court.

In this action plaintiff seeks to recover the sum of $6,000.00, plus interest, on a promissory note. Defendant answered and in the answer set up a counterclaim.

Plaintiff moved to quash the pleadings of the defendant and for the relief requested in the complaint for that the pleadings of defendant were not timely filed and served.

By order dated and filed 17 May 1972 Judge Wells denied the relief sought by plaintiff, and plaintiff appealed.

Poisson, Barnhill & Butler by Algernon L. Butler, Jr. for plaintiff appellant.

White, Allen, Hooten & Hines by John R. Hooten for defendant appellee.

*157CAMPBELL, Judge.

The order appealed from was dated and filed 17 May 1972. The Rules of Practice in this Court require the record on appeal to be docketed within ninety (90) days after the date of the judgment, order, decree or determination appealed from unless the trial tribunal, for good cause, extends the time not exceeding sixty (60) days. Rule 5. In the instant case no extension of time was procured from the trial tribunal, and the ninety (90) days expired 15 August 1972. The record on appeal was not filed in this Court until 21 August 1972 and was therefore not timely filed. Dixon v. Dixon, 6 N.C. App. 623, 170 S.E. 2d 561 (1969); Kurtz v. Insurance Co., 6 N.C. App. 625, 170 S.E. 2d 496 (1969).

For failure to comply with the rules of this Court

Appeal dismissed.

Judges Morris and Parker concur.