{
  "id": 8549952,
  "name": "INDIAN TRACE CO., a joint venture composed of BEASLEY-KELSO. ASSOCIATES, INC. and GARVIN B. HARDISON v. WILLIAM J. SANDERS, et al.",
  "name_abbreviation": "Indian Trace Co. v. Sanders",
  "decision_date": "1977-06-01",
  "docket_number": "No. 763SC885",
  "first_page": "386",
  "last_page": "390",
  "citations": [
    {
      "type": "official",
      "cite": "33 N.C. App. 386"
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "229 S.E. 2d 836",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
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          "page": "837"
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    {
      "cite": "31 N.C. App. 522",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8550666
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      "year": 1976,
      "pin_cites": [
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          "page": "523"
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  "last_updated": "2023-07-14T18:09:28.190456+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Morris and Arnold concur."
    ],
    "parties": [
      "INDIAN TRACE CO., a joint venture composed of BEASLEY-KELSO. ASSOCIATES, INC. and GARVIN B. HARDISON v. WILLIAM J. SANDERS, et al"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nThe record before us discloses the following chronology of events:\nJudgment in this case was entered on 22 May 1976 and notice of appeal was given in open court at that time. Defendants were allowed 50 days within which to \u201cserve case on appeal.\u201d On 22 July 1976 defendants obtained an order extending the time to serve the record on appeal to 1 September 1976. On 20 August 1976 defendants obtained a further extension of 20 days within which to serve the record on appeal. Under the date of 24 August 1976 the following appears in the record:\n\u201cI, Sadie W. Edwards, Clerk of the Superior Court of Pamlico County, State of North Carolina, said Court being a Court of Record, having an official seal, which is hereto affixed, do hereby certify the foregoing and attached (sixty-eight sheets) to be a true copy of the file entitled:\nIndian Trace Co., A Joint Venture\nComposed of Beasley-Kelso Associates,\nInc. and Garvin B. Hardison\nVS\nWilliam J. Sanders and others\nas the same is taken from and compared with the original now on file in this office.\nIn Witness Whereof, I hereunto subscribe my name and affix the seal of the Superior Court of Pamlico County, at my office in Bayboro, North Carolina, this 24th day of August, 1976.\ns/ Sadie W. Edwards Clerk Superior Court Ex Officio Judge of Probate\u201d\nOn 15 October 1976 the parties by stipulation settled the record on appeal. On 25 October 1976 the record on appeal was filed in this Court. On 28 October 1976 defendants made a motion seeking permission to file the \u201cClerk\u2019s Certification\u201d as an addendum to the record. That motion was denied without prejudice on 9 November 1976 for the reason that the \u201ccertification sought to be added to the record on appeal has not been presented to this Court.\u201d On 15 November 1976 defendants\u2019 counsel, Frazier & Moore, filed a motion in this Court to be allowed to withdraw as counsel. In their motion counsel stated that they desired to withdraw \u201c . . . because of the inability of the appellants to advance the total cost of the appeal and their desire to change attorneys. ...\u201d Frazier & Moore stated in the motion that \u201c . . . appellants have paid one-half (1/2) of the attorneys fee of Five Thousand Dollars ($5,000.00), which we have had to recycle into the cost of the transcript, court records, docketing cost and cost of bonds.\u201d This court allowed Frazier & Moore\u2019s motion to withdraw by order dated 19 November 1976. On 18 March 1977 defendants, through their attorneys Frazier & Moore, filed a motion to add to the record on appeal the clerk\u2019s certification of the settled record on appeal dated 15 March 1977. Ruling on the motion was postponed by this Court pending expiration of time for oral argument. The motion was denied by this Court in conference on 10 May 1977. On 25 March 1977 plaintiff moved pursuant to Appellate Rule 25 that the appeal be dismissed for defendants\u2019 failure to comply with Appellate Rule 12(a). Ruling on this motion was postponed pending expiration of time for oral argument.\nAppellate Rule 25 in pertinent part provides:\n\u201cIf after giving notice of appeal from any court, commission, or commissioner the appellant shall fail within the times allowed by these rules or by order of court to take any action required to present the appeal for decision, the appeal may on motion of any other party be dismissed.\u201d\nAppellate Rule 11(e) provides:\n\u201cWithin 10 days after the record on appeal has been settled by any of the procedures provided in this Rule 11, the appellant shall present the items constituting the record on appeal to the clerk of superior court for certification. The clerk of superior court shall forthwith inspect the items presented and, if they be found true copies and transcriptions, certify them, noting the date of certification on the appropriate docket.\u201d\nAppellate Rule 12(a) provides:\n\u201cWithin 10 days after certification of the record on appeal by the clerk of superior court, but no later than 150 days after giving notice of appeal, the appellant shall file the record on appeal with the clerk of the court to which appeal is taken.\u201d\nChief Judge Brock stated in Ledwell v. County of Randolph, 31 N.C. App. 522, 523, 229 S.E. 2d 836, 837 (1976),\n\u201cThe North Carolina Rules of Appellate Procedure are mandatory. \u2018These rules govern procedure in all appeals from the courts of the trial divisions to the courts of the appellate division; . . . \u2019 App. R. 1(a).\u201d\nIn response to plaintiff\u2019s motion to dismiss for defendants\u2019 failure to comply with Appellate Rule 12(a), defendants\u2019 counsel stated,\n\u201c[A]fter having carefully perused the latest Motion of the plaintiff as well as the record proper, we totally fail to comprehend the thrust of the plaintiff\u2019s motion to dismiss and say to this court, that, the statement of the case was timely served on the attorneys for the plaintiff, who, accepted .the same as was certified to this Court. That the matter was properly and timely docketed in the North Carolina Court of Appeals as by rules provided; that within the time provided by rules the brief was filed; However, it was brought to the attention of the undersigned that the Clerk\u2019s Certificate of the record proper was dated August 28, 1976. We moved at the time to file with this court a modified certificate of the Clerk of the Superior Court of Pamlico County. The attorneys for the plaintiff now allude to the One Hundred Fifty (150) day rule, which we say, we were well within said time unless the plaintiff is contending that the case was not timely docketed. ...\u201d\nManifestly defendants have failed to comply with Appellate Rules 12(a) and 11(e). Indeed, the appeal was subject to dismissal for counsel\u2019s failure to comply with the rules when counsel filed their motion to be allowed to withdraw even though they had already been paid $2,500 in attorneys\u2019 fees. Although the record demonstrates that counsel was well aware of the \u201c150.day rule,\u201d and the record on appeal was settled in ample time for defendants\u2019 counsel to have complied with the rule, counsel has offered no explanation for their failure to do so.\nAppeal dismissed.\nJudges Morris and Arnold concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Lee, Hancock and Lasitter by C. E. Hancock, Jr., for plaintiff appellee.",
      "Frazier and Moore by Reginald L. Frazier for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "INDIAN TRACE CO., a joint venture composed of BEASLEY-KELSO. ASSOCIATES, INC. and GARVIN B. HARDISON v. WILLIAM J. SANDERS, et al\nNo. 763SC885\n(Filed 1 June 1977)\nAppeal and Error \u00a7 39.1\u2014 record on appeal \u2014 certification by clerk \u2014 time for filing\nAppeal is dismissed for failure of appellant to comply with the requirement of App. R. 11(e) that the record on appeal be presented to the clerk of superior court for certification within 10 days after it is settled and with the requirement of App. R. 12(a) that the record on appeal be filed in the Court of Appeals within 150 days after notice of appeal is given.\nAppeal by defendants from Bailey, Judge. Judgment entered 22 May 1976 in Superior Court, Pamlico County. Heard in the Court of Appeals 3 0 May 1977.\nThis is a special proceeding wherein the plaintiff, Indian Trace Co., seeks to have the court partition a tract of land located in Pamlico County. Plaintiff alleged in its complaint that it owns a seven-eleventh undivided interest in the property and defendants, William J. Sanders et al, own a four-elevenths interest in the property. Defendants answered alleging that they were the sole owners of the property, having obtained title by adverse possession. After trial the court granted plaintiff\u2019s motion for a directed verdict. From a judgment decreeing that plaintiff and defendants are the owners of the property as tenants in common as alleged in plaintiff\u2019s complaint and decreeing that the property be partitioned, defendants appealed.\nLee, Hancock and Lasitter by C. E. Hancock, Jr., for plaintiff appellee.\nFrazier and Moore by Reginald L. Frazier for defendant appellants."
  },
  "file_name": "0386-01",
  "first_page_order": 414,
  "last_page_order": 418
}
