#### W. M. “JIMMIE” UMPHLETT, T/A JIMMIE’S COASTAL SERVICE v. WILLIAM M. BUSH, et ux, MARY H. BUSH

No. 691DC514

(Filed 17 December 1969)

Appeal and Error § 89— failure to docket record on appeal in apt time

Appeal is dismissed for failure to docket the record on appeal within the time prescribed by Court of Appeals Rule o. Court of Appeals Rule 48.

Appeal by defendants from Privott, District Judge, May 1969 Session of DaRE District Court.

Plaintiff, a building contractor, instituted this action to recover a balance alleged to be due upon an oral contract for repairs and additions to certain buildings owned by defendants near Kitty Hawk, N. C. Defendants answered and denied the amount of the contract and the amount of credits thereon as alleged in the complaint, and counterclaimed for loss of certain tools and materials which defendants alleged had been converted by plaintiff to his own use and for damages resulting from plaintiff's alleged failure to perform the contract in a workmanlike manner. The parties waived jury trial. After hearing evidence, the district judge answered issues finding defendants indebted to plaintiff for labor and materials furnished as alleged in the complaint in the amount of $2,811.68, plaintiff indebted to defendants as alleged in the counterclaim in the amount of $182.60, and rendered judgment in favor of plaintiff in the amount of the difference of $2,629.08. Defendants appealed.

Forrest V. Dunstan for plaintiff appellee.

McCown & McCown, by Wallace H. McCown, for defendant appellants.

PARKER, J.

The judgment here appealed from was dated 12 May 1969. The record on appeal was docketed in this Court on 15 September 1969, 126 days after the date of the judgment appealed from. Rule 5 of the Rules of Practice in the Court of Appeals provides that the case may be dismissed if the record on appeal is not docketed within 90 days after the date of the judgment appealed from; provided the trial tribunal may, for good cause, extend the time for docketing the record on appeal not exceeding 60 days. No order extending the time for docketing appears in the record before us. For failure to docket within the time prescribed by our rules, the appeal is dismissed. Rules 5 and 48, Rules of Practice in the Court of Appeals *73of North Carolina; Osborne v. Hendrix, 4 N.C. App. 114, 165 S.E. 2d 674; City of Bandleman v. Stevenson, 4 N.C. App. 113, 165 S.E. 2d 693; Ellis v. Guilford County, 4 N.C. App. 111, 165 S.E. 2d 688; Evangelistic Assoc. v. Bd. of Tax Supervision, 3 N.C. App. 479, 165 S.E. 2d 67; Williams v. Williams, 1 N.C. App. 446, 161 S.E. 2d 757.

Appeal dismissed.

Campbell and Graham, JJ., concur.