Mayor & City Council of City of Havre De Grace v. Fletcher

• Decision Date: 11 February 1910
• Citation: Mayor & City Council of City of Havre De Grace v. Fletcher, 77 A. 114, 112 Md. 562 (Md. 1910)
• Parties: MAYOR AND CITY COUNCIL OF CITY OF HAVRE DE GRACE v. FLETCHER.
• Court: Maryland Court of Appeals

77 A. 114

112 Md. 562

MAYOR AND CITY COUNCIL OF CITY OF HAVRE DE GRACE

v. FLETCHER.

Court of Appeals of Maryland.

Feb. 11, 1910.

Appeal from Circuit Court, Harford County.

Action by Mary Elma Fletcher by her father and next friend against the Mayor and City Council of Havre de Grace. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, THOMAS, PATTISON, and URNER JJ.

P. L. Hopper, for appellant.

Thomas H. Robinson and Arthur L. Jackson, for appellee.

PEARCE, J. A motion to dismiss this appeal has been filed upon the ground that the cost of printing the transcript of the record was not paid by the appellant or its counsel within 10 days from the receipt of the notice from the clerk of this court, stating the amount of the cost of printing the same, and that the time for the said payment was not extended by agreement of counsel nor by order of this court, as provided by rule 34 of this court. The transcript of the record was received by the clerk of this court on October 15, 1909, and a bill of the cost of printing the same was sent by him to the appellant's counsel on October 20, 1909, and received by him in due course of mail, but the costs were not paid until December 20, 1909, and the case was called in its due course on the docket of this court, and was submitted on briefs January 21, 1910.

The object of this rule is primarily to secure prompt payment of the cost of printing the record, in order that no unnecessary delay in the argument of cases in their regular order may be occasioned for want of the printed record, and secondarily, in order that counsel may be provided with printed copies of the record in due time, for convenient preparation and exchange of their briefs, as provided by rule 36. There is no provision in rule 34 that an appeal shall be dismissed for noncompliance with the rule and no penalty of any character is provided for noncompliance. The record was ready when the case was called, as were the printed briefs of counsel, on both sides. No delay in the business of the court was occasioned by the failure to pay the costs of printing the record within 10 days after notice of the amount of the costs, and an inspection of the character of the record in this case shows that it could not have been necessary to aid in preparing the briefs. No inconvenience therefore has been caused to any one in the matter. Under such circumstances it would operate as an injustice to deprive this defendant of the right of appeal.

Rule 30, § 2. which requires counsel to furnish copies of their briefs to opposing counsel not less than three days before the case is called for argument, provides that upon failure of either party to comply with that section of the rule, the one not in default may have the case continued at the cost of the other party, or may proceed with the oral argument and file within six days thereafter, a printed argument in reply to the brief on the other side, the cost of printing the same to be taxed against and recovered from the party in default; but it does not require or authorize dismissal of the appeal for such default. In a case like the present, where it should be made to appear that the want of the record interfered with the preparation of the briefs, or prevented their exchange before the case was called, it would be ground, either for continuance upon the application of the party not in default, or for the exercise of the alternative privilege provided by rule 30, but the motion to dismiss in this case must be overruled.

The only question presented by this record arises upon the action of the circuit court for Harford county in overruling the defendant's demurrer to the plaintiff's second amended declaration, which we will transcribe in full.

"Second Amended Declaration.

"State of Maryland, Harford county, Set.: "Mary Elma Fletcher, infant under the age of 21 years, by J. Archer Fletcher, her father and next friend, by Michael H. Fahey and A. Freeborn Brown, attorneys, sues the mayor and city council of Havre de Grace, a corporation duly incorporated under the laws of the state of Maryland, John H. Saricks, Mary A. Saricks, and George H. Saricks.

"First. For that the defendant, the mayor and city council of Havre de Grace aforesaid, is a municipal corporation of the state of Maryland, charged by the law with the duty of caring for and maintaining the streets, alleys, and sidewalks of the city of Havre de Grace and of keeping the same fit and safe for public travel, and charged with the duty to remove and abate all nuisances and obstructions on said streets, alleys, and sidewalks, and it was at the time of the injuries hereinafter mentioned and is now the duty of said body corporate to use reasonable care and caution to keep all of the public streets, alleys, and sidewalks in safe condition for public travel and to prevent and remove all nuisances therefrom (or on or from any lots within the limits of the city), and disregarding and neglecting the said duty and obligation imposed upon it the said defendant, the mayor and city council of Havre de Grace, did, on the 20th day of June, 1908, and for a long time prior thereto, permit the said John H. Saricks, Mary A. Saricks, and George H. Saricks to stack beer kegs on or near the side of Water street, one of the public traveled streets of said city, near or at its intersection with Otsego street, in such a manner as to be dangerous to persons passing along and upon said street, and failed and neglected to remove the same and failed and neglected to require the said John H. Saricks, Mary A. Saricks, and George H. Saricks to remove the said beer kegs so stacked by them on or near the side of said street, and that on the 20th day of June, 1908, the date above mentioned, these beer kegs were stacked on or near the side of Water street, at or near its intersection with Otsego street, to the height of about eight feet, by the said John H. Saricks, Mary A. Saricks, and George H. Saricks, and that on said day and date while the said infant plaintiff was passing along and upon the sidewalk of said Water street at or near its intersection with Otsego street, where the public using said street travel at all times, and while said infant plaintiff was using due care, one of said beer kegs fell upon said infant plaintif...