#### JOHN H. ELLIS and Wife, FRANCES N. ELLIS, v. GUILFORD COUNTY and T. WADE BRUTON, as Attorney General of North Carolina

No. 6918SC123

(Filed 26 February 1969)

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

Where appellant fails to docket record on appeal within the time provided by the rules of the Court of Appeals, the appeal will be dismissed. Rule of Practice in the Court of Appeals No. 5.

Appeal from Collier, J., 19 August 1968 Civil Session, Guilford Superior Court, Greensboro Division.

Plaintiffs instituted this action for a declaratory judgment declaring Chapter 1006 of the Session Laws of 1959 and an ordinance adopted pursuant thereto by the Guilford County Board of County Commissioners unconstitutional and void.

Chapter 1006 of the Session Laws of 1959 is codified as Article 20B of Chapter 153 of the General Statutes, Sections 153-266.10 to 153-266.22. The act purports to authorize boards of county commissioners to enact regulations pertaining to zoning and regulation of buildings.

. The defendant Guilford County filed a demurrer to the complaint asserting that the complaint did not state facts sufficient to constitute a cause of action. Judge Collier sustained the demurrer and dismissed the action by judgment dated and filed 21 August 1968.

From this judgment the plaintiffs in apt time appealed to this Court.

Turner, Rollins, Rollins & Suggs by Thomas Turner for plaintiff appellants.

David I. Smith and Ralph A. Walker for defendant appellees.

Campbell, J.

The judgment appealed from was dated 21 August 1968. The record on appeal was agreed to by a stipulation entered into 31 October 1968.

The case and record on appeal was docketed in this Court on 7 January 1969. The rules of this Court require the record on appeal to be docketed within ninety days after the date of the judgment appealed from. Rule 5.

*112For failure to docket the record on appeal within the time provided by the rules of this Court, this appeal is

Dismissed.

BROCK and Morris, JJ., concur.