Warburton v. Robinson

²⁵ Urner, J., delivered the opinion of the Oourt. A motion has been filed for the dismissal of this appeal because the record was not transmitted within the time limited by section 33 of Article 5 of the Code of Public General Laws. The appeal was entered on 'September 14th, 1909, but the record was not sent to this Court until the 18th of the following December after the expiration of the prescribed period of three months. It is provided by section 40 of Article 5 of the Code 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.” This provision of the Code imposes upon the appellant the burden of showing that the failure to forward the record within three months after the entry of the appeal was not the result of his own neglect, but was due to the default of the clerk or appellee.

Parsons v. Padgett, 65 Md. 356 ; Willis v. Jones, 57 Md. 362 ; Estep v. Tuck, 109 Md. 528 ; M. D. & V. Ry. Co. v. Hammond, 110 Md. 124 . In the absence of proof that the clerk or appellee was delinquent the presumption is that the appellant was responsible for the delay, and he must satisfy the Oourt that by proper diligence the record could not have been prepared and transmitted in time. Ewell v. Taylor, 45 Md. 573 ; N. C. R. R. Co. v. Rutledge, 48 Md. 262 ; Mason v. Gauer, 62 Md. 263 .

As was said in Steiner v. Harding, 88 Md. 343 : “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 date of the entry of the ²⁶ appeal and the date of the transmission of the record; and this prima facie evidence must he rebutted and overcome by the appellant.” In the present instance we have been unable to reach the conclusion, from the affidavits filed, that the burden imposed by the law upon the appellant has been sustained. There is an absolute contradiction between the clerk and the appellant as to the responsibility for the delay.

The appeal was from an order sustaining exceptions to the fourth report of the auditor in proceedings relating to a continuing trust, and the record as a whole was voluminous. The deputy clerk who had charge of appeals from the Court below-deposed that he notified the appellant, who was one of the counsel in his own hehalf, that he was prepared to make out and transmit the record and requested him to designate such portions as he desired to be included in the transcript, and that the appellant promised to do so, but did not indicate what should go into the record until on or about December 13th, 1909, when he g'ave the requisite directions, hut that it was not then possible to make out and transmit the record within the time limited by the Code. The deputy’s affidavit was supplemented by the deposition of Mr. Drennen, who was clerk at the time of the appeal, to the effect that the apjoellant, although requested so to do, failed to give any directions as to what part of the proceedings should be incorporated in the record for transmission to this Court until after the expiration of the deponent’s term of office on December 6th, 1909. Both of these affiants declare that the delay in sending up the record was not occasioned by any neglect, omission or inability of the clerk, but that it would have been