Estep v. Tuck

Worthington, J., delivered the opinion of the Court. In- this case a motion to dismiss the appeal has been filed upon the ground that the record was not transmitted to this Court within the time prescribed by Article 5, see. 33 of the-Code of 1904, relating to appeals from Courts of Equity. ⁵²⁹ By that section it is provided that: “All transcripts of records on appeals from Courts of Equity, shall he made and transmitted to the Court of Appeals within three months from the time of the appeal prayed.” The appeal in this case was entered on April 15, 1908, and the record was received by the Clerk of this Court on October 1, 1908, or live and one-half months after the appeal prayed. The cause for the delay is sought to be explained by an affidavit, filed on behalf of the appellants, setting forth certain correspondence that passed between Mr. Earber, attorney for appellants, residing in Baltimore, and the Clerk of the Circuit Court for St. Hilary’s County, residing at Leonardtown. From this correspondence it appears that on June 12, 1908, Mr. Farber wrote the clerk, enclosing an agreement or stipulation, signed by himself and Mr. Bansemer, attorney for one of the appellees, as to what the transcript of record should contain.

This letter was received by Mr. Abell, the clerk, on the following day, June 13, 1908. It further appeal’s that at the time this letter was received, the papers in the case were in ihe hands of the lower Court, and were not returned to the clerk’s office until several weeks later. In the meantime further correspondence took place between the attorney and the clerk, and in one of the letters that passed betwen them, dated July 13, 1908, but which was not received by Mr. Abell until July 22, 1908, Mr. Farber, says: “Before making up the record, kindly let me know precisely what you propose to put in it, and before sending it up, kindly let me see it, as I wish to make copies of certain papers for my own files.” The record seems to have been finally completed on September 9, 1908, for it was then forwarded to Mr. Farber at Baltimore for his inspection. It was returned to Mr. Abell, on September 24, 1908, with instructions from H. B. Stimpson, writing for Mr. Farber, ⁵³⁰ to eliminate therefrom a certain affidavit of Mr. Tuck, contained therein, and to include certain of the rules of the Circuit Court for St. Mary’s County, sitting in equity.

Section 40, article 5 of the Code 1904, provides that no •appeal shall be dismissed because the record has not been transmitted within the time prescribed, if it appears to the Court of Appeals that such delay was occasioned by the neglect, omission or inability of the clerk or appellee, “but such neglect, omission or inability shall not be presumed, but must be shown by the appellant.” So far as the affidavit shows, the first letter from Mr. Farber, to the clerk was dated June 12, 1908. Nearly two months therefore were allowed to pass before any steps were taken by him to have the record made up, and then, before it was made up, the clerk was requested to advise counsel at Ballimore what he intended to put in the record, and to send the transcript to him for inspection before transmitting it to the Court of Appeals. Neither negligence, omission nor inability is to be presumed against the clerk for not making up the record promptly after the appeal prayed, on April 15, 1908, and the delay, at least until June 12, must be attributed, in the absence of any explanation, to the fault of the appellants. Subsequently for several weeks, the papers seem to have