
    JOHN H. HORSEY vs. JEROME H. WOODWARD.
    
      Court of Appeals: rules; effect of—; preparation of record; disagreement of counsel; delay in transmission.
    
    In the absence of proof that the Clerk of Court or the appellee was delinquent, the presumption is that the appellant was responsible for the delay in transmitting the record to the Court of Appeals, and he must satisfy the Court that the record could not, by proper diligence, have been prepared and transmitted ir> time. p. 363
    Where the clerk is not in default, a very strong case must be made out to rebut the presumption of negligence on the part of the appellant. p. 368
    The rule of the Court of Appeals, in regard to the time of transmitting the record, and of taking an appeal, has the binding force of a statute, and the observance is obligatory on the Court. p. 363
    In the ease of disagreement between counsel as to what the record should contain, the question should be determined by the trial judge. p. 368
    
      Decided December 4th, 1914.
    
    
      Appeal from the Circuit Court for Caroline County. (Adkins and Hopper, JJ.)
    The facts are stated in the opinion of the Court.
    The cause was argued before Boyd, C. J., Briscoe, Burke, Thomas, Pattison, Urner, Stookbridge and Constable, JJ.
    
      Reuben Oarey and Wm. L. Marbury, for the appellant.
    
      Howard Bryant (with whom were J. H. Q. Legg and Oscar Ciarle on the brief), for the appellee.
   Burke, J.,

delivered the opinion of the Court.

This is an appeal from a judgment for the sum of six hundred and thirty-two dollars and twenty-five cents entered against the appellant in the Circuit Court for Caroline County on April U, 1913. On June 13, 1913, the appellant filed an order for an appeal with the clerk of that Court. The transcript of the record was not filed in this Court until July 28, 1914:—after the lapse of more than a year from the date of the order for appeal.

A motion has been made to dismiss the appeal for the reason that the transcript of the record was not transmitted to the Court within three months from the time of appeal taken as required by section 6, Article 5, of the Code of 1912. (Rule 2 of this Court relating to Appeals from Courts of Law.) Rule 16 of this Court (section 40, Article 5, of the Code), provides that:

“Ho 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.”

Referring to this rule in Steiner v. Harding, 88 Md. 34-3, the Court said: “The rule has the binding .force of a statute, and its observance is obligatory on the Court. Wo have no-power to relax it, or to disregard it so- long as it remains uiircvoiced. Cases falling under it are not within the domain of judicial discretion, but they are governed by its imperative provisions.”

It is conceded that the delay in the transmission of the record was no-t due to the neglect, omission or inability of the clerk. It was said in Warburton v. Robinson, 113 Md. 24. that: “This provision of the Code 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. Parsons v. Padgett, 65 Md. 356; Willis v. Jones, 51 Md. 362; Estep v. Tuck, 109 Md. 528; M., D. & V. Ry. Co. v. Hammond, 110 Md. 124.

“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 no-t 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.”

Ko fault being imputed to the clerk, the sole question to lie determined upon this motion is this: Has the burden imposed upon the appellant been discharged? Five affidavits have been filed. That of John II. Hartnett, Esq., the official stenographer for the Second Judicial Circuit, shows that he was requested by counsel for the appellant about June 16, 1913, to furnish him with a copy of the testimony, and that it was furnished about the last of August, 1913. The affidavit of Mr. J. Kemp Stevens, the clerk, shows that the ■delay in sending the transcript was not due to a want of diligence on his part.

An affidavit has been filed by Mr. Reuben G-arey, counsel for the appellant, and two by counsel for the appellee. Upon material points the statements appearing in the affidavits of ■counsel for the appellant are at variance with those contained in the affidavits of Messrs. 'Clark and Legg, the counsel for the appellee. Mr. G-arey states that soon after the receipt ■of the testimony from the official stenographer had been received by him the bills of exceptions were prepared and “that promptly after the preparation of such bills of exception, they with a copy of the testimony in the case, were pre•sented to the counsel for the adverse side who lived in Den-ton, Maryland, and that he expressed a desire to consult his associate who lived in Centreville, Maryland, before signifying whether or not such bills of exception were satisfactory, and for that purpose retained the same until during the October Term of Court, 1913, at which time said counsel stated that they were not satisfactory; that said bills of exceptions were then promptly submitted to the Court who was asked to determine whether or not they were sufficient and if they were not, to say what such should contain, and that the Court did nob pass on their sufficiency until about November 26, 1913, when it concluded they ivere not sufficient; that the affiant promptly thereafter, made a re-draft of the bills of ■exception, adding as much additional testimony as he thought could possibly be required to present the case fully to the Court of Appeals—said re-draft being herewith filed as part hereof, and marked “Exhibit B”; that promptly after the completion of such re-draft, it with a copy of the testimony, on or about January 19, 1914, was submitted to the counsel in Denton, Maryland, for the adverse side, for consideration, who after retaining such re-draft for more than a month, during which time the affiant asked several times respecting it, each time being told that he and his associate counsel had not had an opportunity to go over it and determine as to its sufficieney, about February 25, 1914, returned it with the statement that it was not satisfactory and that nothing less than the entire testimony would satisfy them—thus making it necessary, if the Court should agree with them, to incorporate in the record a large body of testimony which, in tbe bumble judgment of the counsel for the appellant, was not necessary, and which usually enhances the cost.

The affidavit of Mr. Clark which is corroborated by (hat of Mr. Legg, states that the bills of exceptions were handed to him. by Mr. Garey on October 2, 1913; that ho at once communicated with Mr. Legg, his associate counsel, and suggested that they meet in Denton October 6, 1913, for consultation concerning the exceptions; and that a meeting was held in Denton on October 6, 1913, at which time it was agreed by Mr. Garey and both counsel for appellee, that Mr. Legg should take the testimony and bills of exceptions to his home in Centreville for examination, promising to return them on the following Wednesday; “that on said Wednesday, October 8, 1918, and said Legg returned to Denton, bringing the papers, and discussed them with this deponent; that the affiant Garey came to deponent's office and was told that, after having fully considered the said bills of exception, counsel for the appellee had arrived at the conclusion that the appellee was entitled, under the prayers passed upon by the Court in the trial, to have the testimony in the case incorporated at largo in the bills of exception to be filed; that die affiant Garey disagreed with this conclusion of counsel for the appellee, and said, ‘Let’s put it up to the Court to decide,’ referring to the judges of the Circuit Court for Caroline County; that this deponent’s associate counsel then called attention to the fact that the Court was sitting at Denton, and proposed that the matter of the sufficiency of the said bills of exceptions bo forthwith submitted to the Court, which was done in the presence of counsel for both the appellant and the appellee, on the eighth day of October, 1913, and the Court, on the same day, decided that the contention of counsel for the appellee that the said bills of exception were insufficient, was sound, and stated to counsel that under the prayers passed upon in the trial of the case the appellee was clearly and undeniably entitled to have all the testimony in the case incorporated in the bills of exception to be filed by counsel for the appellant.

“That this deponent believed the contention between counsel for thé two parties as to the sufficiency of the said bills of exception, marked Exhibit A and attached to the affidavit of counsel for the appellant heretofore filed in the Court of Appeals of Maryland, had been settled beyond question by the ruling of the Circuit Court for Caroline County on October 8, 1913, and this deponent heard nothing- more from the affiant Garey concerning the same until a few days prior to the twenty-sixth day of November, 1913, when he was advised by the said Garey that he, Garey, had made an appointment with Judges Adkins and Hopper to hear him in reference to bills of exceptions in the above entitled cause on said date, and asked that counsel for the appellee be present at the hearing. This deponent immediately acquainted his associate, Legg, of this request of Garey, and the three appeared before Judges Adkins and Hopper at Easton, Maryland, on November 26, 1913. After hearing argument by counsel for the appellant on the sufficiency of the bills of exception then presented, this deponent and his associate counsel learned that they were identically the same bills of exceptions submitted to the Court in Denton on October 8, 1913, ‘not a syllable being changed,’ in the language of the affiant Garey at the Easton hearing. Upon the conclusion of the argument by the said Garey, and without hearing counsel for the appellee, Judges Adkins and Hopper affirmed the Court’s ruling of October 8, 1913, and again advised the counsel for the appellant that the bills of exceptions offered for the second time were palpably insufficient, and directed that the testimony in the case be incorporated in the bills of exception.

“That late in the month of January, in the year nineteen hundred and fourteen, the affiant- Garey presented to this deponent a re-draft of the said bills of exception-—referred to in tho affidavit of said Garey hereinbefore mentioned as Exhibit D—for his inspection, and requested that this redraft be agreed to- l>y counsel for the appellee as constituting and being sufficient bills of exception in the above entitled cause; to which request of tho said Garey this deponent at once replied that counsel for the appellee would make no such agreement, hut at the expressed desire of the said Garey this deponent did communicate by telephone with his associate counsel at Oentreville concerning the request of the affiant Garey, and immediately thereafter advised the said Garey that his associate agreed with this deponent that the bills of exceptions must be made to conform to the Court’s direction as to the incorporation therein of the testimony, and that no draft of hills of exceptions not thus conforming to the Court’s ruling of October 8, 1913, would be accepted by counsel for the appellee as meeting the requirement of sufficiency; and within two or three days thereafter the redraft given this deponent by the affiant Garey was by this deponent returned to the office of the clerk of the Circuit Court for Caroline County, of which return of said paper the said Garey was at once notified by this deponent.”

The record shows that on the 24th of November, 1913, the appellee filed in the lower Court a petition to- dismiss the appeal. It appears from the facts stated that a disagreement existed between tho counsel as to what the hills of exceptions should contain; that this agreement arose as. early as October 8, 1913; that counsel for appellant was fully aware of the attitude of the appellee’s counsel at that time, and that he had no reason to suppose that they would abandon their contention as to what facts should be incorporated in the record. They did not mislead him in any way. He understood their position perfectly. And it also appears that the bills of exceptions were not handed to the Court until about May 24, 1914. It was said in Ewell v. Taylor, 45 Md. 573. that “We cannot establish the precedent that an appeal may be delayed beyond the time fixed by law, and the appellant excused because of an anticipated agreement with the opposite counsel in regard to the contents of a transcript of the record of his case. The rules regulating appeals are sufficiently explicit to indicate what it should contain. If it is defective, it may generally he remedied by a writ of diminution. Where the clerk is not in default, a very strong case must be made out by the appellant to rebut the presumption of laches on his part. He must satisfy the Court that by proper diligence a correct record could not have been made up and transmitted in time.”

Here the appellant knew from October 8, 1913, that counsel for appellee would not agree to any bills of exceptions which did not embrace the whole testimony, and this knowledge presents a stronger reason for holding that the mere fact of disagreement furnishes no excuse for failure to transmit the record within the time prescribed by law. We said in Wilmer v. Baltimore, 116 Md. 338, that “in the case of appeals in cases at law it is the long settled practice in this State, in the event of a disagreement between counsel for the trial judge to determine what shall constitute the record.” According to the affidavits of the counsel for appellee the trial judge did determine the'question on October 8, 1913, and Mr. Carey states that the Court on Hovember 26, 1913, determined that his first bills of exception were insufficient. We do not find that the appellee is responsible for the delay in sending up the record, and we do not see why the appellant could not, after consultation with the Court, have prepared and transmitted the record to this Court within the time required, and the appeal must therefore be dismissed.

Appeal dismissed.  