#### N. M. BILL v. DONALD HUGHES

No. 7412DC145

(Filed 20 March 1974)

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

Appeal is dismissed for failure of appellant to docket the. record on appeal within 90 days from the date of the order appealed from. Court of Appeals Rules 5 and 48.

*153Appeal by plaintiff from an order entered by Carter, District Judge, on 27 August 1973.

This cause was first tried on its merits at the 20 March 1972 Civil Session of District Court held in Cumberland County and resulted in a judgment for defendant. Upon entry of the judgment, plaintiff gave notice of appeal to this court, however, plaintiff failed to perfect this appeal.

On 8 November 1972 an order was entered denying plaintiff’s motions to vacate the 20 March 1972 judgment and for a new trial, both of these motions having been duly filed within ten days after the entry of the 20 March 1972 judgment. The plaintiff gave notice of appeal from the 8 November 1972 order but again failed to perfect his appeal. On 30 April 1973 the defendant, pursuant to G.S. 1-287.1 and Rule 7 (b) of the Rules of Civil Procedure, filed a motion to dismiss the appeal of plaintiff and this motion was granted on 11 June 1973. Thereafter, on 23 June 1973 the plaintiff filed a motion to vacate the order dismissing his appeal which motion was denied on 27 August 1973 and from this denial, the plaintiff filed the present appeal.

McCoy, Weaver, Wiggins, Cleveland & Raper by Neil V. Davis for plaintiff appellant.

Williford, Person & Canady by N. H. Person for defendant appellee.

HEDRICK, Judge.

The record on appeal was docketed in this court on 30 November 1973 which was more than 90 days from the date of the order from which the purported appeal was taken. For failure of appellant to docket the record- on appeal in this court in accordance with the Rules of Practice in this court, the appeal is dismissed, Rules 5 and 48 of the Rules of Practice of this court.

Dismissed.

Judges Campbell and Baley concur.