Wilmer v. Haines

Parke, J., delivered the opinion of the Court. The motion to dismiss the appeal is based on the ground that the transcript of the record was not transmitted to the ³⁸⁸ Court of Appeals within three months from the time of the appeal prayed. The order for the appeal was filed on November 18th, 1924, and the record was- not received by the Court of Appeals until February 19th, 1925, which was one day too late,- unless the failure to comply with the statute was due to a delay which was occasioned by the neglect, omission, or inability of the clerk or the appellee. Bagby’s Code 1924, art. 5, secs. 37, 44; Horseman v. Furbush, 124 Md. 581 ; Md., D. & V. Ry.

Co. v. Hammond, 110 Md. 124 ; Marx v. Reinecke, 142 Md. 342 . Although the decree Was passed and filed in the cause on September 19th, 1924, the appeal was not taken and entered until November 18th, at quarter past four in the -afternoon, or barely within the two months’ period allowed for an appeal. Bagby’s Code, 'art. 5, sec. 36. The testimony was given in open court on September 19th, and appears in the record as having been filed as of that date, but it was, in fact, not then actually filed, as the testimony was taken by a stenographer, whose notes were not transcribed until later.

The clerk could not make up the record until the stenographic notes had been reduced to writing and filed with the clerk in the cause. It was not, however, until February 9th, 1925, that the clerk received instructions to proceed with the making of the record, and even then the typewritten testimony was not on the court file but was forwarded by the counsel for the appellant to the clerk on February 13th. On the same day, the clerk completed the making of the record, and advised the solicitor for the appellant that the record was ready for transmission, and what the costs of the transcript would be. Code, art. 5, sec. 45.

The clerk received on February 17th through mail from the solicitor for the appellant a check for the costs of the record, and on that day the record was duly forwarded to the Court of Appeals, where it