Laukenmann v. Laukenmann

Powers, J., delivered the opinion of the Court. On 24 July 1972 appellant filed in the Circuit Court for Howard County an order for appeal from a decree filed on 3 July 1972 by Judge T. Hunt Mayfield. The record was received in this Court on 23 August 1972. The record contained no transcript of testimony taken in the court below, as required by Maryland Rule 1026 b and c 2.

On 4 December 1972 appellee filed a motion to dismiss the appeal for failure to file and include a transcript in compliance with Rules 1025 and 1026. This motion was too late and too early. The failure complained of was the failure to file the record, which by definition, Rule 1026 b, includes the transcript of testimony. Rule 1035 b (4) permits a motion to dismiss by a party for failure to comply.

However, Rule 1036 allows two alternative times for filing such a motion on that ground. Under § c the motion shall be filed within ten days from the date the record is filed with this Court. Under § d the motion may be included in the appellee’s brief. Appellee did include a motion to dismiss in her brief, and it is properly before us.

In any event, appellant filed an answer to the first, untimely, motion, describing his failure to arrange for and file a transcript as a “grievous oversight”. Appellant thereafter filed a “Motion to Correct an Omission in the Record”, and appellee filed an answer. We directed that ¹⁰⁹ both motions be heard at the time assigned for argument on the merits. They were so heard.

At the argument on the motions, we were informed that all copies of a transcript containing 120 pages had been placed in the automobile of appellee’s counsel at about midnight the