#### RUSSELL G. SIMMONS v. LEON EDWARDS

No. 682SC317

(Filed 5 February 1969)

Appeal and Error §§ 39, 44— failure to aptly docket appeal and file brief

Appeal is dismissed for failure to file a brief within the time required by Rule 28 and for failure to docket the appeal within the time prescribed by Rule 5.

Appeal by plaintiff from Cohoon, J., April 1968 Session Superior Court Of TYRRELL.

This is a civil action to recover damages for personal injuries sustained as the result of an automobile collision.

At the close of plaintiff’s evidence, defendant moved for a judgment as of nonsuit. The motion was allowed, and plaintiff appeals.

Jones, Jones and Jones by L. Bennett Gram, Jr., for plaintiff appellant.

Bailey and Bailey by Carl L. Bailey, Jr., for defendant appellee.

Morris, J.

Appellant has failed to comply with Rule 28 of the Rules of Practice in the Court of Appeals of North Carolina by his failure to file his brief within the time required. Defendant, in apt time, before the brief was filed, and in accordance with Rule 28, moved to dismiss the appeal. On the day after appellant filed his brief, he filed a petition for extension of time for filing brief to and including the day the brief was actually filed. In addition to noncomplianee with Rule 28, appellant also failed to comply with Rule 5 in that he did not docket his appeal in this Court within the time prescribed. For failure to comply with the Rules of Practice in this Court, the appeal is dismissed. Despite these circumstances, we have examined the record and the evidence presented and we find no error in the ruling of the trial tribunal.

Appeal dismissed.

Mallard, C.J., and Campbell, J., concur.