Horseman v. Furbush

• Decision Date: 13 January 1915
• Docket Number: 51.
• Parties: HORSEMAN et al. v. FURBUSH.
• Court: Maryland Court of Appeals

93 A. 149

124 Md. 581

HORSEMAN et al. v. FURBUSH.

No. 51.

Court of Appeals of Maryland

January 13, 1915

Appeal from Circuit Court, Wicomico County; Henry L. D. Stanford Judge.

"To be officially reported."

Action between George D. Horseman and others and Elvira E. Furbush. From the judgment, said Horseman and others appeal. Appeal dismissed.

L Claude Bailey, of Salisbury (Joseph L. Bailey, of Salisbury on the brief), for appellants. Alonzo L. Miles, of Salisbury (E. Stanley Toadvin, of Salisbury, on the brief), for appellee.

URNER J.

The order for the appeal in this case was filed in the court below on May 18, 1914, and the record reached this court on the 19th of the following August. A motion to dismiss the appeal has been filed on the ground that the record was not transmitted within the time prescribed by the rule of the Court of Appeals, embodied in section 6 of article 5 of the Code of Public General Laws. The period of three months allowed for that purpose, computed from the date of the order for the appeal, was exceeded in the present instance by only one day, but as the terms of the rule are explicit and positive, and have the controlling effect of a statute upon the action of the court, the only inquiry open to us, upon the motion to dismiss, is that permitted by another rule (Code, art. 5, § 40), which provides 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."

It is the plain intent of this provision that when the record does not reach this court in due time, as required by the rule, a motion to dismiss must prevail, unless the appellant relieves himself of the responsibility for the delay by showing that it is properly chargeable to the clerk or appellee. If this burden of proof is not discharged, "there is," to quote from the opinion in Steiner v. Harding, 88 Md. 345, 41 A. 800, "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." There has been no variation in the enforcement of the rule according to its evident purpose. Horsey v. Woodward, 93 A. 9 (October term, 1914); M., D. & V. Ry. Co. v. Hammond, 110 Md. 124, 72 A. 650; Estep v. Tuck, 109 Md. 528, 72 A. 459; Parsons v. Padgett, 65 Md. 356, 4 A. 410; Willis v. Jones, 57 Md. 362; Warburton v. Robinson, 113 Md. 24, 77 A. 127. In the last-cited case it was said that the rule "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. *** 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 court 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." The inquiry to which we are confined, therefore, is whether the appellant has furnished the proof required by the rule.

An affidavit of the clerk of the court below has been presented from which it appears that he prepared the record in this case at the request of counsel for the appellant; that he completed the transcript on ...