Hohensee v. Hohensee

PER CURIAM. On May 2, 1957, an appeal from the Circuit Court for Prince George’s County was docketed in this Court. No transcript of testimony in the trial court was included. On May 9, 1957, the appellee filed a motion entitled “Appellees Motion to Dismiss”, which did not in fact contain a prayer for dismissal of the appeal but sought: (1) “an order directing the appellant to include in the record the * * * stenographic records [of three hearings in open court in the trial court] by some date [to be] named in said order under Rule 826 section C subsection 2”; and (2) such other and further relief as might be deemed just and proper.

Appended to the motion was a proposed form of order directing the appellant to file the stenographic transcripts on or before a date to be fixed by this Court and providing for dismissal of the appeal upon failure to do so. A certificate of service by mail was set forth at the foot of the petition. On May 29, 1957, no answer to this petition having been ²⁸⁶ filed by the appellant, this Court passed an order directing the appellant to cause a copy of the transcript of each of the three hearings to be filed on or before July 1, 1957, directing the Clerk of this Court to enter the case dismissed and to remand the record to the Circuit Court for Prince George’s County if the transcripts were not filed by July 1, 1957, and directing the Clerk to send a copy of the order on the date thereof to the appellant by certified mail, return receipt requested. Notice was sent accordingly and the return receipt shows that it was received by the appellant on June 3, 1957.

The appellant neither complied with the order nor filed any response thereto until July 2, 1957, on which date he filed a document entitled “Motion to Rescind Order and Dismiss”. A certificate of service at the foot thereof signed by the appellant states that he mailed a copy to counsel for the appellee on June 30th. The appellant complains that the order of May 29, 1957, was not made in accordance with the rules of this Court, since it was issued “before appellant made opposition to said motion.” There is no rule requiring this Court to sit by idly until such time as a party may see fit to act. It seems reasonable to infer that the appellant whose address is in Washington, D. C., received notice of the appellee’s motion as soon as the original reached the