Marx v. Reinecke

Adkins, J., delivered the opinion of the Court. A motion has been made in this case to dismiss the appeal on the ground that the record was not sent up in three months from the date of the appeal. The order for appeal was filed January 24th, 1922. The record reached this Court on August 17th, 1922.

The Code of Public General T^awa, article 5, section 6 (Rule 2 of this Court), provides that in appeals from courts of law “the transcript of the record shall be transmitted to the Court of Appeals, ivithin three months, from the time of the appeal taken.” 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 oeca-sioued 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. ³⁴⁴ By an unbroken line of decisions of this Court, it lias been established that these rules mean that the appeal must be dismissed if the record is not transmitted within the time named, subject only to the exception contained in Rule 18, and that this Court hasi no discretion in the matter. A similar rule applicable to appeals from court-s of equity has been likewise construed. Ewell v. Taylor, 45 Md. 573 ; Steiner v. Harding, 88 Md. 343 ; Estep v. Tuck, 109 Md. 528 ; Md., D. & V. Ry. Co. v. Hammond, 110 Md. 124 ; Warburton v. Robinson, 113 Md. 24 ; Horseman v. Furbush, 124 Md. 581 ; Castelberg v. Hamburger, 133 Md. 42 .

In Steiner v. Harding, supra, it was said.: “The delay in transmitting .the record cannot be presumed to be the fault of the clerk. Indeed, whenever such a. delay occurs the appellant must, to save the appeal from being dismissed, affirmatively show that the delay was occasioned by the neglect, the omission or the inability of the clerk. The prima facie evidence requiring the Court under its rules to dismiss an appeal is furnished when the fact appears, that more than three months have elapsed between the elate of the entry of the .appeal and the date of the transmission of the record; and this prima facie evidence must be rebutted and overcome by the appellant. He can overcome its effect- by showing that the delay was due (first) to. the neglect, (second) to the omission, or' (third) to the inability of the clerk.

If he fails to establish at least one of these exculpatory circumstances there is no- discretion given this Court to entertain the appeal; and the appellee’s right to -have it dismissed, secured as it is by the positive terms of the rule, becomes fixed and indefeasible. The rule has the binding force of a statute and its observance. is obligatory in this Court. We have no power to relax it, or to disregard it so long as it remains unrevokecl. Cases falling under it are not within the domain of a judicial discretion, but they are governed by its imperative provisions.” In that ease it was the clerk who was charged with the delay, and the Court was applying the rule accordingly.

Here there is no suggestion that the clerk was in any way at ³⁴⁵ fault, but appellant seeks to overcome the prima facie presumption by attributing the fault to appellee’s attorneys; and that, under the rule, would he a good excuse if it could be shewn that there was fault on the part of appellee or her attorneys of such a character that but for it the record would Lave been transmitted within the prescribed time, and that appellant was not chargeable with any lack of diligence. But the affidavits filed in this case by appellant do not present such a state, of affairs. It distinctly appears, from the affidavit of JrDon Moss, the trial judge, that on the day after the papers, purporting to be bills of exception, were presented to him, on February Ith, 1922, and three days before the expiration of the extended time for presenting bills, of exception, he examined them and found them not to, he in proper form; whereupon he “sent for local counsel for appellant and so informed him, saying that the exceptions, would have, to be incorporated with, the, testimony before signing; whereupon appellant’s counsel requested return of the paper, saying he would have it prepared in proper form. After the lapse of considerable time, without the bills of exception being, returned, the court made inquiry for the same, requesting appellant's counsel to return same to court; when, after several inquiries, he was informed that they were then in the hands of local counsel for the appellee,, the certifying judge visited the office of local counsel for the appellee and requested the bills of exception, and was informed by said local counsel that he had no knowledge of the, same being at Ms office, but would consult