{
  "id": 8548642,
  "name": "THE NORTH CAROLINA STATE BAR, Complainant v. ELAM REAMUEL TEMPLE, Attorney at Law, Smithfield, North Carolina, Respondent",
  "name_abbreviation": "North Carolina State Bar v. Temple",
  "decision_date": "1969-10-22",
  "docket_number": "No. 6911SC489",
  "first_page": "437",
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      "cite": "3 N.C. App. 73",
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      "cite": "162 S.E. 2d 649",
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    {
      "cite": "2 N.C. App. 91",
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  "analysis": {
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  "last_updated": "2023-07-14T21:07:50.917320+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Campbell and PARKER, JJ., concur."
    ],
    "parties": [
      "THE NORTH CAROLINA STATE BAR, Complainant v. ELAM REAMUEL TEMPLE, Attorney at Law, Smithfield, North Carolina, Respondent"
    ],
    "opinions": [
      {
        "text": "GRAHAM, J.\nJudgment disbarring the respondent from the practice of law was entered 24 October 1967 after a jury had found him guilty of six separate acts of fraudulent and unprofessional conduct. The respondent\u2019s appeal was docketed and calendared but he did not appear in this court to argue. His appeal was nevertheless given thorough consideration and all assignments of error were disposed of in the opinion of Britt, J., State Bar v. Temple, 2 N.C. App. 91, 162 S.E. 2d 649. Thereafter the respondent petitioned for a rehearing, specifically requesting that oral arguments be directed. His petition was granted and the matter was duly docketed and calendared for hearing. Again the respondent did not appear to argue, nor did the attorney who signed his brief. The respondent\u2019s assignments of error were again found to be without merit. State Bar v. Temple, 3 N.C. App. 73, 164 S.E. 2d 13. On 3 December 1968 the respondent filed notice of appeal in the Supreme Court of North Carolina, alleging he was appealing as a matter of right. The appeal was dismissed by the Supreme Court on 21 January 1969. On 12 February 1969, the respondent filed a motion for a new trial in the Supreme Court on the grounds of newly discovered evidence. Upon being advised that the matter was not then pending in the Supreme Court, the respondent filed a similar motion in the Superior Court of Johnston County. The order denying that motion and the entering of the formal judgment of execution are the subject of this appeal.\nThe order and judgment appealed from are dated 5 May 1969. To properly effect this appeal it was necessary that the respondent docket the record on appeal in this court within ninety days after 5 May 1969. Rule 5, Rules of Practice in the Court of Appeals of North Carolina. The ninetieth day was on Sunday, 3 August 1969, so the respondent had through Monday, 4 August 1969, to docket the appeal. However, the appeal was not docketed in this court until 26 August 1969. No order appears in the record before us extending the time within which the appeal could be docketed and in accordance with the practice of this court and pursuant to Rule 48, Rules of Practice, supra, this appeal is dismissed ex mero motu for failure to docket within the time prescribed by Rule 5.\nIn dismissing this appeal we nevertheless note that the respondent\u2019s motion for a new trial was addressed to the sound discretion of the trial court. The decision of the trial court is not reviewable absent an abuse of discretion and no such abuse has been shown. State v. Morrow, 264 N.C. 77, 140 S.E. 2d 767; Allen v. Gooding, 174 N.C. 271, 93 S.E. 740. The defendant\u2019s motion and affidavits fall far short of establishing the necessary prerequisites for granting a new trial on the basis of newly discovered evidence. State v. Casey, 201 N.C. 620, 161 S.E. 81.\nAppeal dismissed.\nCampbell and PARKER, JJ., concur.",
        "type": "majority",
        "author": "GRAHAM, J."
      }
    ],
    "attorneys": [
      "Robert B. Morgan, Attorney General, for plaintiff appellee.",
      "E. R. Temple in propria persona."
    ],
    "corrections": "",
    "head_matter": "THE NORTH CAROLINA STATE BAR, Complainant v. ELAM REAMUEL TEMPLE, Attorney at Law, Smithfield, North Carolina, Respondent\nNo. 6911SC489\n(Filed 22 October 1969)\n1. Appeal and Error \u00a7 39\u2014 failure to aptly docket record on appeal\nAppeal is dismissed by the Court of Appeals eco mero motu for failure to docket the record on appeal within 90 days after the order appealed from as required by Rule 5. Court of Appeals Rule No. 48.\n2. Criminal Law \u00a7 131\u2014 new trial for newly discovered evidence \u2014 discretion of court\nMotion for a new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and decision of the trial court on such a motion is not reviewable absent an abuse of discretion.\nAppeal from Hobgood, J., 31 March 1969 Session of JohNSTon County Superior Court.\nThis is an appeal by the respondent from an order and a judgment entered on 5 May 1969. The order denied respondent\u2019s motion for a new trial on the grounds of newly discovered evidence. The judgment affirmed a prior judgment disbarring respondent from the practice of law and ordered that judgment into effect from 29 January 1969, the date an opinion of this court affirming the judgment of disbarment was certified to the Clerk of Superior Court of Johnston County.\nRobert B. Morgan, Attorney General, for plaintiff appellee.\nE. R. Temple in propria persona."
  },
  "file_name": "0437-01",
  "first_page_order": 461,
  "last_page_order": 463
}