#### DORIS LOVELACE BOONE, MARY ATKINS LOVELACE AND JOE DAVID LOVELACE v. MARY BOONE

No. 7417DC790

(Filed 4 December 1974)

Appeal and Error § 39— record on appeal — time for docketing

Appeal is dismissed where the record on appeal was docketed more than 90 days from the date of the order from which the appeal was taken.

Appeal by defendant from Harris, District Judge, 22 May 1974 Session of District Court held in ROCKINGHAM County. Heard in the Court of Appeals on 14 November 1974.

*136Plaintiffs, Doris Lovelace Boone (mother), Mary Atkins Lovelace and Joe David Lovelace (maternal grandparents), instituted this action to obtain custody of Gregory Thomas Boone, age 7, Mark Todd Boone, age 5, and Mary Nicole Boone, age 9 months, from the defendant, Mary Boone (paternal grandmother). Pursuant to a hearing on the plaintiffs’ motion for an award of custody pending the final determination of the cause on the merits, Judge Harris on 22 May 1974 entered an order awarding custody of the children to the plaintiffs. Upon the entry of this order, the defendant in open court gave notice of appeal to the Court of Appeals.

For a further statement of the facts involved in the two appeals in this case, see the opinion in Boone v. Boone, No. 7417DC763, filed in the Court of Appeals on 20 November 1974.

Gwyn, Gwyn & Morgan by Julius J. Gwyn for plaintiff appellees.

Benjamin R. Wrenn, P.A., by Benjamin R. Wrenn for defendant appellant.

HEDRICK, Judge.

The record on appeal was docketed in this court on 23 August 1974, which is more than ninety days from the daté of the order from which the appeal was taken. No extension of time within which to docket the appeal has been granted. Therefore, pursuant to Rules 5 and 48 of the Rules of Practice in the Court of Appeals and upon motion of the plaintiffs, the appeal is

Dismissed.

Judges Brock and Campbell concur.