Miller v. Mencken

• Citation: 93 A. 219,124 Md. 673
• Decision Date: 13 January 1915
• Docket Number: 61.
• Parties: MILLER v. MENCKEN.
• Court: Court of Appeals of Maryland

93 A. 219

124 Md. 673

MILLER v. MENCKEN.

No. 61.

Court of Appeals of Maryland

January 13, 1915

Appeal from Orphans' Court, Baltimore County.

"To be officially reported."

Proceedings in the orphans' court between Gregory J. Miller administrator, and Henry Mencken, administrator. From an order in favor of the latter, the former appeals. Appeal dismissed.

Edward Rees, of Baltimore (Thomas C. Weeks, of Baltimore, on the brief), for appellant.

John E Dempster, of Baltimore, for appellee.

CONSTABLE J.

The appellee has filed a motion for the dismissal of this appeal on the ground that the record was not transmitted to this court within the time prescribed by statute and rule of this court. This is an appeal from an order of the orphans' court of Baltimore county. Rule 13 (80 A. x) of this court and section 62 of article 5 of the Code provide that all appeals from orders of the orphans' courts to this court shall be taken and entered within 30 days from the date of such order appealed from, "and the register of wills shall make out and transmit to the Court of Appeals, under his hand and the seal of his office, a transcript of the record of proceedings in such case, within thirty days after the appeal prayed." The order appealed from was passed on the 7th day of July, 1914, the order for an appeal was filed the same day, and the record was transmitted to this court on the 28th day of August 1914--22 days beyond the time allowed under the rule and statute.

Rule 16 (80 A. x) and section 40 of article 5 of the Code provide 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."

This section has many times been under consideration by this court, and it has been consistently held, and thus firmly established as the law, that when it appears that more than the prescribed time, from the date of the appeal and the transmission of the record, has elapsed, prima facie evidence has been furnished requiring the court, under its rules, to dismiss the appeal; and, if the appellant would save his appeal, he must rebut and overcome this prima facie evidence. As the rule states no presumption arises that it was the neglect, omission, or inability of the clerk or appellee, but the onus is on the appellant of showing the neglect, omission, or inability was theirs or one of them, and in the absence of proof that they, or either of them, were in default, the presumption is that the delay was through the default of the appellant, 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; Willis v. Jones, 57 Md. 366; Mason v. Gauer, 62 Md. 263; Parsons v. Padgett, 65 Md. 356, 4 A. 410; Steiner v. Harding, 88 Md. 343, 41 A. 799; Estep v. Tuck, 109 Md. 528, 72 A. 459; Warburton v. Robinson, 113 Md. 24, 77 A. 127; Horpel v. Hawkins, 115 Md. 156, 80 A. 842; Wilmer v. Mayor, etc., 116 Md. 338, 81 A. 685.

The appellant, in an endeavor to meet the burden placed upon him, filed several affidavits. An affidavit by his counsel was to the effect: That, on the day the appeal was prayed, he personally sorted the papers, which be desired to go in the record, and gave them to the deputy register; the register not having been present during the proceedings. That on July 8, 1914, he received a letter signed by the register and dated July 7th, reading as follows:

"Dear Sir: The issues are ready to go up in re Est. of Lillian Miller. Kindly let me have costs."

That he wrote his client twice for the costs, and, not receiving a reply, went to his home, about August 27th, and there learned he had been ill from the early part of the month, but was convalescent on the day of his visit. That he procured the money from the brother of the appellant, and paid the costs on August 28th. Another affidavit is by the attending physician deposing that he attended the appellant from the first week in August for gastritis, and gave instructions to keep the appellant as quiet as possible. Another by the mother of the appellant to the same effect as to his illness and that the first letter from the attorney was received by her, but ...