Doughnut Corp. of America v. Chapman

• Decision Date: 14 December 1943
• Docket Number: 27.
• Citation: 35 A.2d 114,182 Md. 493
• Parties: DOUGHNUT CORPORATION OF AMERICA et al. v. CHAPMAN.
• Court: Maryland Court of Appeals

35 A.2d 114

182 Md. 493

DOUGHNUT CORPORATION OF AMERICA et al. v. CHAPMAN.

No. 27.

Court of Appeals of Maryland

December 14, 1943

Appeal from Circuit Court, Howard County; Jas. E. Boylan, Jr. Judge.

Proceeding under the Workmen's Compensation Law by Luther Chapman claimant, opposed by Doughnut Corporation of America employer, and the Employers Mutual Liability Insurance Company of Wisconsin, insurer. From a judgment of the Circuit Court, the employer and insurer appeal and claimant moves to dismiss the appeal.

Appeal dismissed.

Hyman Ginsberg, of Baltimore (H. Beale Rollins Samuel S. Smalkin, and Ginsberg & Ginsberg, all of Baltimore, on the brief), for appellants.

Paul Berman, of Baltimore, Jerome A. Loughran, of Ellicott City, and Eugene A. Alexander, III, of Baltimore, for appellee.

Before SLOAN, C.J., and DELAPLAINE, COLLINS, MARBURY, GRASON, MELVIN, ADAMS, and BAILEY, JJ.

SLOAN Chief Judge.

In this case a motion to dismiss the appeal was filed by the appellee because of delay in the transmission of the record to this court.

The docket entries show that judgment was entered December 21, 1942. February 20, 1943, an order for appeal was filed, which was the last day, but one, in which it could have been taken. The record was transmitted to this court on June 10, 1943, and received and filed here on June 11, 1943, three weeks after the time fixed by statute and the rule of this court. Art. 5, sec. 6, Code 1939; Rule 2. December 18, 1942, an order was passed extending the time for filing the bill of exceptions to February 28, 1943. February 23, 1943, the time was further extended to sixty days from February 28, 1943.

April 10, 1943, the time was further extended to sixty days from April 28, 1943, or five weeks beyond the time allowed for transmission of the record. The bill of exceptions was not filed until May 29, 1943, three months and nine days after the appeal was taken. On June 8, 1943, the clerk sent letters to counsel to examine the record before transmission to the Court of Appeals. The same day it was examined by counsel for appellants. On June 9th, a letter was received by the clerk from counsel for the appellee that they refused to examine the transcript because the time for transmitting the same to the Court of Appeals had expired. The next day it was transmitted.

The law with respect to time within which appeals can be taken, bill of exception signed, and records transmitted has been fully covered in the case of Marx v. Reinecke, 142 Md. 342, 120 A. 876, and a reference to that case is alone sufficient to support the motion to dismiss in this case. See, also, Presstman v. Fine, 162 Md. 133, 136, 159 A. 265; Williams Realty Co. v. Robey, 175 Md. 532, 534, 2 A.2d 683; Brill v. State, 144 Md. 68, 69, 124 A. 414; Price v. State, 160 Md. 670, 671, 154 A. 556.

Section 6, Art. 5, of the Code 1939, provides that all appeals from a court of law must be taken within two months from the date of judgment, ' and not afterwards,' (The appeal here allowed only one day's grace.) 'and the transcript of the record shall be transmitted to the Court of Apppeals within three months from the time of the appeal taken, or writ of error allowed.' Rule 2 of this court.

The only excuses for the failure to comply with Rule 2, are contained in Rule 18; Code, Art. 5, sec. 44, where it is said: 'No appeal shall be dismissed because the transcript shall not have been transmitted within...