Ewell v. Taylor

Brent, J., delivered the opinion of the Court. All transcripts of records, on appeals from Courts of equity, are required to he made out and transmitted to this Court within six months from the time of the appeal prayed. The appeal in this case was taken on the 4th day of October, 1875, and the transcript was not sent from the office of the clerk of Dorchester County, to he transmitted to this Court until the 15th day of April, 1876. It was then sent hy private hand, and filed here, with the clerk, on the 3rd day of the following May.

It is not necessary to determine, whether, under the circumstances of this case, the time that the transcript was in the hands of the party entrusted with its carriage should be estimated, for without including it, more than the six months, allowed for its transmission, had passed before it was sent from the office of the clerk of Dorchester County. Unless therefore some sufficient cause for this delay is shown hy the appellant, the motion to dismiss the appeal must prevail. The 16th rule, regarding appeals, puts the burden of proof upon the appellant. It provides that “ no appeal shall he dismissed because the transcript shall not have been transmitted within the time prescribed, if it shall appear to the Court of Appeals that such delay was occasioned by the neglect, omission or inability of the clerk ; hut such neglect, omission or inability shall not he presumed, but must he shown hy the appellant.” Two affidavits of the clerk of Dorchester County have been filed, one dated the 31st of October, and the other the 4th of November, 1876.

From these it clearly appears that the delay cannot be attributed to him. Nor has it been insisted in argument that he was in any way in default. He states that he received instructions from the appellant’s ⁵⁷⁵ counsel not to make out the transcript until he directed him so to do, and that when he did afterwards direct him to make it out, it was so late that it was impossible for him to complete it in time. As the appellant has control of his appeal, he had the undoubted right so to instruct the clerk, and it was but the duty of the latter to obey.

The appellant’s counsel, in his affidavit dated the 18th November, states