108 N.C. App. 780 | N.C. Ct. App. | 1993
Plaintiff argues that Judge Wright’s 15 January 1992 order dismissing plaintiff’s appeal from the 18 November 1991 judgment for failure to timely file notice of appeal should be reversed. We disagree and affirm.
“Rule 25 of the North Carolina Rules of Appellate Procedure allows the trial court to dismiss an appeal if the appellant failed to give notice of appeal within the time allowed by the Appellate Rules.” Landingham Plumbing and Heating of N.C., Inc. v. Funnell, 102 N.C. App. 814, 815, 403 S.E.2d 604 (1991).
N.C.R. App. P. 3 provides in part:
(a) Filing the Notice of Appeal. Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.
* * *
(c) Time for Taking Appeal. Appeal from a judgment or order in a civil action or special proceeding must be taken within 30 days after its entry.
“Appellate Rule 3 is jurisdictional and if the requirements of this rule are not complied with, the appeal must be dismissed.” Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, disc. review denied, 327 N.C. 633, 399 S.E.2d 326 (1990) (citation omitted).
Here, the trial court entered an order dismissing the plaintiff’s appeal because the plaintiff’s notice of appeal was untimely filed. The plaintiff admits in his brief that he did not properly file notice
Rule 2 provides:
To prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon application of a party or upon its own initiative, and may order proceedings in accordance with its directions.
(Emphasis ours).
Rule 27 provides:
(c) Extensions of Time; By Which Court Granted. Except as herein provided, courts for good cause shown may upon motion extend any of the times prescribed by these rules or by order of court for doing any act required or allowed under these rules; or may permit an act to be done after the expiration of such time. Courts may not extend the time for taking an appeal or for filing a petition for discretionary review or a petition for rehearing prescribed by these rules or by law.
(Emphasis ours).
Because Rule 27(c) expressly prohibits this Court from enlarging the time necessary for taking an appeal, we must deny plaintiff’s request to vary the rules. Cf. Giannitrapani v. Duke University, 30 N.C. App. 667, 670, 228 S.E.2d 46, 48 (1976).
Finally, we note that the plaintiff has filed a petition for a writ of certiorari. After carefully examining the substance of the underlying appeal, we find it to be without merit. Accordingly, the petition for writ of certiorari is denied.
Affirmed.
