81 A. 685 | Md. | 1911
The appeal in this case was dismissed upon the day following the argument upon the motion to dismiss, at which time it was announced that the reasons for such action would be given later.
On June sixth, 1910, a decree was entered by the Circuit Court of Baltimore City in this case, and on August fourth, two days before the expiration of the time limited for an appeal, the order for an appeal was filed. Under section 33 of Article 4, Code Public General Laws, the record should have been transmitted to this Court so as to reach here at the latest by November third, 1910; it was in fact transmitted on March thirty-first, 1911, reaching this Court on April first. It is this delay and non-compliance with the statute which forms the ground for the motion to dismiss.
As is usual, affidavits and counter affidavits have been filed as to the cause of the delay. From these it appears that no agreement having been reached between counsel, the solicitors of the appellant gave an order to the clerk to insert certain enumerated papers as constituting the record, while the clerk suggested that these would not constitute a complete record. The appellant's solicitors then brought the situation to the attention of the judge before whom the case had been heard, who informed them that if they would prepare a statement of what should, in their judgment, be included in the record and submit it to him, he would order the clerk to prepare the record in such manner as might appear proper to him, this the appellant's solicitors said they would do, but in fact never did.
In argument the appellant asserts that he has the right to control the record and relies on the decisions in Ewell v.Taylor,
The time for the transmission of the record expired on November fourth, 1910. More than four months were then allowed to elapse during which nothing appears to have been done to give vitality to the appeal prayed in August, and during which time one of the counsel of the appellant had the matter brought directly home to him, by the non pros of an ejectment suit connected with a portion of the same property here involved. The inaction during this interval of more than four months remains entirely unexplained, and is additional evidence of default on the part of the appellant.
The order for the appeal was filed on the fourth of August, 1910, the list of the selected papers for the record was handed to the clerk on or about the twenty-first day of October, 1910, but the cost of the record of these was not paid for until the thirty-first of March, 1911, and the clerk is under no obligation to forward the record until it is paid for. Steiner v.Harding,
It has been held in a long line of decisions in this State that the burden is upon an appellant 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. Ewell v. Taylor,
The burden which the law imposes has not been met by the appellant in this case, and the appeal is accordingly dismissed, with costs.
Appeal dismissed, with costs. *342