Steiner v. Harding

Roberts, J., delivered the opinion of the Court. A motion has been made to dismiss this appeal and that motion must prevail. The prayer of appeal, which was filed on April 26, 1898, is in these words, as appears by a copy of it annexed to the affidavit of Mr. Fearhake: “ Frederick, Md., 25 April, 1898. A. Fearhake, Esq., City.

Dear Sir: — I wish you, or whoever is the Equity Clerk, would please enter an appeal prayed in 6689 Eq., Harding v. Steiner. I will be away to-morrow, but will see you Wed. Yrs. hurriedly, E. S. Eichelberger.” Endorsed as follows, viz: “ No. 6689 Equity. Prayer of appeal entered.

Filed April 26, 1898. True Copy. Test: Douglass H. Hargett (Seal), Clerk.” The record did not reach this Court until August 18th. By Rule 16 (sec. 38, Art. 5, of the Code), it is provided: “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.” By Rule 27 (sec 6, Art. 5, of the Code), the transcript of the record must be transmitted to this Court within three months from the time the appeal was taken.

It is apparent, then, that more than three months elapsed between the 26th of April and the 18th of August; and under the 16th rule the delay in transmitting the record cannot be presumed to ³⁴⁵ 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 date 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 on this Court. We have no power to relax it, or to disregard it so long as it remains unrevoked. Cases falling under it are not within the domain of a judicial discretion, but they are governed by its imperative provisions.

The prima facie case being made out as already suggested, it comes to a simple inquiry of fact as to whether the appellants have satisfactorily shown that the clerk was responsible for the delay. Five affidavits have been submitted, two on behalf of the appellants and