Duvall v. Maryland Electric Railways Co.

Schmucker, J., delivered the opinion of the Court. The appeal before us was taken from a judgment in assumpsit against the appellant, as defendant below, in the Circuit Court for Anne Arundel County. The final judgment in the Circuit' Court was entered on August 19th, 1909, and the appeal therefrom was taken on October the 6th, 1909. After several extensions of the time for signing the bills of exception, made upon the application of the appellant, they were signed and filed on February 3rd, 1910, which was within the limit of the last order of extension.

The transcript of the record was not transmitted to this Court until April 16th, 1910. A motion has been filed in this Court by the appellee to dismiss the appeal because the transcript of the record was not sent here within the time required hy law. In support of the motion there was filed an affidavit of William FT. Woodward the deputy clerk of the Circuit Court for Anne Arundel County which states: (1) That he as such deputy has charge of the dockets of said Court and of the filing of papers in cases thereon and ³⁰⁰ of making out the transcripts of records for the Court of Appeals.

(2) That in the present case the bills of exception were filed on the 3rd of February, 1910, and that within a few days thereafter the record in the case was ready for transmission to the Court of Appeals, but its transmission was delayed until the 15th day of April, 1910, because the costs of the record were not paid in the clerk’s office of the Court below until the last named day. (3) That the delay in the transmission of the record to this Court was not occasioned by the neglect, omission or inability of the clerk or any one connected with his office or of the appellee. The appellant filed an answer to the motion to dismiss, in which he averred that the delay in preparing the bills of 'exception was largely due to the fact that the appellee’s counsel retained in his possession a typewritten copy of the testimony, made from notes taken by a stenographer during the "trial, for so long time that it did not come into the possession of the appellant’s counsel until January 14th, 1910. The answer was accompanied by an affidavit in rather general terms from the stenographer, who made the copy of the testimony, touching its retention by the appellee’s counsel, and also one from the deputy clerk Woodward, which did not materially vary the statements made in his previous one.

The appellee’s counsel