Uhler v. Real Properties, Inc.

• Decision Date: 07 November 1980
• Docket Number: No. 165,165
• Citation: 289 Md. 7,421 A.2d 966
• Parties: Robert UHLER et ux. v. REAL PROPERTIES, INC. et al.
• Court: Maryland Court of Appeals

Page 7

289 Md. 7

421 A.2d 966

Robert UHLER et ux. v. REAL PROPERTIES, INC. et al.

No. 165.

Court of Appeals of Maryland.

Nov. 7, 1980.

Charles O. Fisher, Sr., Westminster (Walsh & Fisher, Westminster, on brief), for appellants.

Mark I. Cantor, Baltimore (Harold I. Glaser, Baltimore, on brief), for appellees.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

RODOWSKY, Judge.

Appellants suffered the dismissal of their appeal to the Court of Special Appeals on the ground that the record had not been transmitted to the intermediate appellate court from the Circuit Court for Carroll County within the time required by Maryland Rule 1025. Because appellants have shown that the failure timely to transmit the record was occasioned by the inability of the court stenographer to complete the transcript of testimony, we reverse the dismissal.

The issue with which we are presently concerned is collateral to litigation which commenced on October 12, 1971. Appellee, Real Properties, Inc., which was later joined by other plaintiffs (collectively herein called "RPI") sued appellants, Robert Uhler and Clara Uhler (the "Uhlers") in a dispute concerning an alleged right of way over RPI's land. Following trial on October 28 and November 1, 1974, RPI on January 23, 1975 obtained a decree which, inter alia, enjoined the Uhlers from certain use of the easement. By April 2 of that year RPI moved in the original action to have the Uhlers found in contempt. That issue was tried September 23, 1975 and resulted in an order of October 24, 1975 finding the Uhlers in contempt. RPI again moved on July 24, 1978 in the same action for a determination that the Uhlers were in contempt. Following trial on October 16, 1978, a decree of March 6, 1979 adjudged the Uhlers to be in contempt. The subject appeal is from the March 1979 decree.

Preparation of the transcript was requested in writing by the appellants of the court reporter contemporaneously with the timely noting of the appeal. See Rule 1026 a 2. The amount paid as deposit toward cost of the transcript slightly exceeded, as it ultimately developed, the actual cost of the transcript. Two extensions of time for transmitting the record were granted by the Court of Special Appeals on application of the Uhlers. The first application was filed within 60 days after the order for appeal and the second extension application was filed before the expiration of the first extension. The second extension carried to and including Friday, October 26, 1979. On Wednesday, October 17, 1979 the court reporter wrote to counsel for the appellants and requested that he obtain an additional 30 day extension. The reporter explained:

(T)his is the most difficult case I have ever had to transcribe and much of the testimony in the 1974 hearing is defective. Therefore, I need additional time in order to complete this transcript.

Counsel for the Uhlers prepared a third application for extension of time which was mailed on Thursday, October 25, 1979. It was received by the Clerk of the Court of Special Appeals on Monday, October 29, 1979. This application was predicated on the inability of the court reporter to complete the transcript. To it was attached a copy of the letter of October 17, 1979 from the court reporter. These facts were not controverted. The extension was denied. On the margin of the application is endorsed the court's order which reads, "11/7/79 Denied. Untimely filed. Court without jurisdiction to grant. Md.Rule 1025 b." Appellants moved to strike the order of November 7. It was denied on November 15. The court's notation on the motion to strike reads, "Appellant misconstrues Md.Rule 1025 b. Court is without jurisdiction to grant relief unless request for extension is timely. Here it was not."

Despite denial of the extension, counsel for the Uhlers had requested the court reporter to complete preparation of the transcript. This was done and the balance of the transcript was filed with the Clerk of the Circuit Court on November 19. The record was transmitted by the Clerk of the Circuit Court to the Clerk of the Court of Special Appeals on November 30, 1979 under cover of a one sentence letter which states, "We have been requested by the Appellants' attorney to forward this Record to your office and are complying with his request."

On December 6, 1979 RPI filed in the Court of Special Appeals a motion to dismiss the appeal on the ground that the record had not been transmitted within the time prescribed by Rule 1025. The Uhlers answered under affidavit of their counsel who stated that "the failure to transmit the record by October 26, 1979 was due to the inability of the court stenographer to complete the necessary transcripts of testimony by that time." In support of this position appellants again attached the court reporter's letter of October 17. ¹

The Court of Special Appeals entered an order dismissing the appeal on December 14, 1979. It cited Rule 1035 b 4 which provides that failure to transmit the record within the time prescribed by Rule 1025 is a reason for dismissal. We granted appellants' petition for certiorari directed to the questions of whether the Court of Special Appeals had jurisdiction to extend the time for filing the record and whether there was error in dismissing the appeal.

At the times relevant here ² Rule 1025 in pertinent part provided:

a. Within Sixty Days.

Within sixty days after the first order for appeal is filed, unless a different time shall be fixed by order entered pursuant to section b of this Rule, the clerk of the lower court shall transmit the record to this Court.

b. Court of Special Appeals May Shorten or Extend Time.

Upon application of any party and for sufficient cause shown, or upon its own motion, this Court may direct that the record be transmitted within such shorter or longer period of time as may be ordered. Any application for extension of time to file the record shall be made by filing such application with the clerk of this Court within the period of time for filing the record as prescribed by section a of this Rule or as extended by this Court pursuant to this section. No order extending the time for filing the record may be entered if the application is made after the prescribed time for transmitting the record has expired unless it be shown that the failure to transmit the record was occasioned by the neglect, omission or inability of a judge of this Court, the clerk of the lower court, the court stenographer or the appellee.

c. Delay in Transmitting Due to Mistake.

An appeal shall not be dismissed because the record has not been transmitted within the time prescribed, if it appears to this Court that such delay was occasioned by the neglect, omission or inability of a judge of this Court, the clerk of the lower court, the court stenographer or the appellee; provided, however, that such neglect, omission or inability shall not be presumed but must be shown by the appellant. (Emphasis added.)

These provisions have roots going back more than one and a quarter centuries. An appellant in Maryland has been increasingly protected from dismissal of his appeal for failure timely to transmit the record, if it is shown to the appellate court that the failure is occasioned by certain persons, other than the appellant, who play roles in the record preparation and transmittal process. Initially, under Chapter 288 of the Acts of 1842, ³ the appeal was preserved if the delay in transmitting the record was occasioned by the neglect or omission of the clerk of the lower court. The substance of this provision was continued in the 1860 Code of Public General Laws as Art. 5, § 30. ⁴ In rules of this Court respecting appeals, effective January 1, 1870, the 1860 Code provision was continued as Rule 16. The "inability" of the clerk was added together with the following clause: "but such neglect, omission or inability shall not be presumed, but must be shown by the appellant." 29 Md. xxii (1898 Perkins' ed.); Md.Code (1888), Art. 5, § 38. In the revision of the Rules of this Court of April 5, 1909, Rule 16 was amended to add excuse for delay occasioned by the appellee. The provision continued without textual change ⁵ until the order of January 30, 1945, effective February 1, 1945 when a sentence was added which reads: "For good cause shown the Court of Appeals, or if the Court is not in session the Chief Judge thereof, may extend the time for transmitting the transcript by order made before the expiration of the time." The rule in this form remained unchanged until January 1, 1957.

The general operation of these provisions, in terms of former Rule 16 (Md.Code (1912), Art. 5, § 40) is described in Miller v. Mencken, 124 Md. 673, 675, 93 A. 219, 220 (1915).

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, had 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 of 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.

In cases arising under the statutes or rules existing prior to January 1, 1957, where the appellant was able to make the required showing that the failure to transmit the record had been...