Lookerman v. Eastern Shore Trust Co.

³⁴¹ AdiciNS, J., delivered the opinion of the Court. This case was on the docket of the January term and was heard during that term. On motion of appellee a re-argument was granted and heard during the present term. Before the re-argument a motion was made to dismiss the appeal on the ground that the record was not transmitted to this Court “within three months from the, time of the appeal taken” as required by Code, art. 5, see. 6 (Rule 2 of this Court).

No such motion was made at or before the previous argument. In the view we take of the matter it will not be necessary to decide how far, if at all, that omission affects the present motion, as we do not think it ought to have been granted even if it had been made before the former hearing. Section 40 of article 5 of the Code (Rule 18) provides that no appeal shall be 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 or appellee, but such neglect, omission or inability shall not be presumed, but must be shown by the appellant. The appeal was taken October 6th, 1923.

The record was transmitted to this Court on January 11th, 1924, five or six days after the three months,’ period had expired. It was therefore, under Rule 18, incumbent upon appellant to show that the delay was occasioned by the neglect, omission or inability of the clerk or appellee. Mr. James E. Ellegood, one of appellant’s attorneys, filed an affidavit in this Court, in which it is alleged: That (and this appears from the docket entries) the time for filing exceptions, was extended by the trial court until December 15th, 1923, because of the delay on the part of the court stenographer in presenting appellant’s counsel with a copy of the testimony; that counsel for appellant instructed the stenographer immediately after the rendering of the judgment to transcribe the testimony .and furnish them with a copy of same, and on several occasions called upon him for it, but did not receive it until November 28th, 1923; that they proceeded promptly to prepare the exceptions, and com ³⁴² pleted and filed same with tbe court on December 12th, 1923, three days before the time allowed by the extension; that a copy of said exceptions, together with a copy of the testimony, was placed in the hands of counsel for appellee at the request of the trial court; that appellee’s counsel revised them by copying from the evidence more fully than counsel for appellant had done, and held them for more than a week; that the court raised no objection to the exceptions in the form that they were submitted by appellant’s counsel, but signed them as revised by counsel for appellee, as appellant’s counsel did not object to the changes that had been made; that after the exceptions had been duly approved and signed by the court the clerk proceeded with diligence to make up the record for the Court of Appeals; that since December 12th, 1923, neither the appellant nor his counsel have had any control over the exception® or the record; that counsel for appellant were insistent upon having the record in the case made up and transmitted within the time required by law, and that appellant and counsel did everything they could to hasten the making up and forwarding of the record. The affidavit of the deputy clerk alleges that it was his duty to make up the record in this case; that to the best of his recollection the signed bills of exception were filed in the clerk’s office not earlier than January 7th, 1924; that he completed and mailed the record on January 11th, 1924; that he made up the record just as quickly a® it was possible to be done; that the delay in making up and transmitting the record was not due to any neglect, omission-or inability of the clerk.

It is thus apparent from both of the above affidavits that no fault attached to the clerk. Can any part of the blame then be attributed to the appellee or its counsel, or to the trial court? The affidavit of Frederick H. Fletcher, one of the appel-lee’s attorneys, alleges that a duplicate copy of the draft of the bills of exception was submitted to him on or about the 13th day of December, 1923; that they did not, in his judgment, fairly present the evidence or the rulings of the court; ³⁴³ that be promptly took up the matter, and in about a week submitted to the trial court the suggestions of the appellee as to the form of such bills of exception, which required the re-writing of over half the amount of the bills, of exception as they appear in this Court; that said redraft was not objected to by counsel for appellant and was accepted by the court as the proper form of the bills of exception. Under all the facts, as they appear from the above affidavits, we are unable to say that counsel for appellee did not, at least, participate in the delay.

The one having charge of the matter gives it, as his opinion, that there would have been greater delay if he had not redrafted the bills of exception ; but in view of the shortness of the time remaining, we think a week should not have been required to suggest such changes, as he thought should be made; and it might well be that, with these suggestions, counsel for appellant could have shaped up the exceptions and had them signed in a shorter time. Apparently appellant’s counsel made no- objection to any changes suggested by counsel for appellee, but there is nothing to show that the court, required them fco be made or would have refused to sign the exceptions as originally offered. When the failure to transmit the record on an appeal within the time prescribed appears to' have been caused by the appellee as well as the appellant, the appeal will not be dismissed on account of the delay. Forest Lake Cemetery v. Baker, 113 Md. 529 .

See also McConigal v. Plummer, 30 Md. 422 ; Hopper v. Beck, 83 Md. 647 . It appears from Mr. Fletcher’s affidavit that his redraft of the bills of exception was presented to the court in about a week after December 13th, and that the redraft was promptly accepted both by counsel for appellant and the court. It is not, therefore, apparent why the court should have delayed signing them for more than two weeks. This ought not to be charged to appellant, as it does not appear that his counsel had the slightest reason to anticipate such delay, and therefore they were not charged wdth the duty of taking steps at once to require the trial court to. act.

The bills of excep ³⁴⁴ tion were signed as of December 12th, 1923, but it is apparent that they were not actually signed until a later date. The situation w.as entirely different in the case of Marx v. Reinecke, 142 Md. 342 , cited by appellee-. There appellant permitted months to elapse without taking' steps to amend his bills of exception in accordance with the suggestion of the court, after being told by the trial judge that they were-not in proper form as offered; and, while insisting they were in proper form, did nothing’ to require the judge to sign them. The motion to dismiss the appeal must be overruled.

The Eastern Shore Trust Company, appellee, caused to be issued out of the Circuit Court for Dorchester County, directed to the sheriff of Somerest County, a writ of attachment on a judgment obtained by it against The Eastern Shore Brokerage and Commission Company. The record shows that this writ was entered on the docket of the Circuit Co-urt for Somerset County, but it does not appear that a copy of the docket entries in Dorchester County was sent with the writ, as required by section 7 of article 17 of the Code. The attachment was laid in the hands of Charles A. Lock-erman, the appellant, and he was summoned as garnishee. He appeared by counsel and pleaded nulla tona.

The case was moved to Wicomico County and tried before a jury, which rendered a verdict in favor of plaintiff. This appeal. is from the judgment entered on that verdict. It is contended by appellant that the trial court was without jurisdiction, because it does not appear from the record that the provisions of the statute giving the court jurisdiction were substantially complied with, there being nothing in the record to show that a copy of the docket entries was sent with the writ or ever filed in Somerset County. A petition for Writ of diminution was filed in this Court by appellee, in wbicb it is alleged that a copy of the docket entries in Dorchester County accompanied the writ of attachment sent to Somerset County, but that it does not appear in the record in this Court that they were contained in the ³⁴⁵ record sent from Somerset County to Wicomico County; and asking that the record be corrected.

At the argument, counsel for appellant agreed, if the record could be; corrected by the writ of diminution, the record should be considered as amended to show that a copy of the docket entries w'as sent with the writ to Somerset County, but they contended that the necessary correction could not be made by such a writ, because it could only be issued to the court, where the case was tried and from which, on appeal, the record was sent. It was not contended by counsel for appellee that a writ of diminution issued to the trial court would cure the omission in the record. Tt thus appears by