Atkinson v. Tarheel Homes & Realty Co. , 14 N.C. App. 638 ( 1972 )

MORRIS, Judge.

Defendant’s appeal is premature under the provisions of Rule 4, Rules of Practice in the Court of Appeals of North Carolina. We have, however, chosen to treat the appeal as a petition for certiorari which we have granted and proceed to discuss the matter on the merits.

Decision in this matter is governed by G.S. 1A-1, Rule 3 and G.S. 1A-1, Rule 6(b), hereinafter referred to as Rule 3 and Rule 6(b). Rule 3 provides that:

A civil action may also be commenced by the issuance of a summons when

(1) A person makes application to the court stating the nature and purpose of his action and requesting permission to file his complaint within 20 days and

(2) The court makes an order stating the nature and purpose of the action and granting the requested permission.

The summons and the court’s order shall be served in accordance with the provisions of Rule 4. When the complaint is filed it shall be served in accordance with the provisions of Rule 4 or by registered mail if the plaintiff so elects. If the complaint is not filed within the period specified in the clerk’s order, the action shall abate.

Rule 6 (b), in pertinent part, provides:

“When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order. Upon motion made after the expiration of the specified period, the judge may permit the act to be done where the failure to act was the result of excusable neglect.”

Morris v. Dickson, 14 N.C. App. 122, 187 S.E. 2d 409 (1972), is not applicable to the facts of this case.

In this case, plaintiff did not state the nature and purpose of his action in his motion for extension of time within which to file his complaint, nor did the order granting the extension state the nature and purpose of the action as required by Rule 3. The complaint was not filed within the 20 days granted. Even if the other requirements of Rule 3 had been met, plaintiff is not saved by Rule 6(b), because no request was made before the expiration of the period of extension. No motion based on excusable neglect was made after the period of extension expired. No evidence as to excusable neglect appears in the record, nor does the judgment contain any findings upon which excusable neglect could be predicated.

It appears obvious that plaintiff has failed completely to comply with the Rules of Civil Procedure. The judgment must be reversed.

Reversed.

Judges Vaughn and Graham concur.