Maryland, Delaware & Virginia Railway Co. v. Hammond

Worthington, J., delivered the opinion of the Court. In this case the prayer for an appeal was entered in the lower Court on July 25th, 1908, but the record was not received here until November 13th, 1908, and a motion to dismiss the appeal has been made on the ground that the record was not transmitted to this Court within the time prescribed by Art. 5, sec. 6, of the Code. ¹²⁵ The fact that the transcript of record was not received here within three months from the time of the appeal prayed, as provided in the aforegoing section, is prima facie evidence of default on the part of the appellant,, and the burden is upon it to show that the delay was due to the neglect, omission or inability of the clerk or appellee. Affidavits have accordingly been filed by the appellant for this purpose. Counter affidavits have also been filed by the appellee to show that the delay was occasioned by the fault of the appellant.

There is some slight conflict between the affidavits on the part of the appellant and those on the part of the appellee as to the manner in which the clerk obtained possession of the bill of exceptions in the case after it was signed by the Judges of the trial Court. The affidavit of Gen. Seth, of counsel for appellant, is to the effect that he took the bill of exceptions in person to the office of the Clerk of the Circuit Court for Talbot County and delivered the same to the Clerk of said Court on September 24th, 1908. The affidavits on behalf of the appellee, however, are to the effect that the testimony as made up by the stenographer and constituting practically the entire bill of exceptions was obtained by the Clerk on September 24th, 1908, from the office of Judge Adkins, at Easton.

The affidavit of the Clerk himself, of his deputy, and of Miss Elma Fleming, a young lady in the office of Judge Ad-' kins, are all to the same effect in this regard, and a letter written by Judge Adldns at Elkton, where he was then holding Court, to the Clerk at Easton, filed in the. case, we think, shows conclusively that the testimony was so obtained by him from Judge Adkins’ office. In other respects the affidavits are not conflicting and show that