Opinion
[No. 100, September Term, 1970.]
Decided November 11, 1970. Motion for rehearing filed December 1, 1970; denied December 7, 1970.
APPEAL — Time For Transmitting Record — Where Time For Transmitting Record Was Extended By Lower Court More Than 90 Days After First Order For Appeal Filed And Record Was Actually Transmitted More Than 90 Days After The First Order For Appeal, The Appeal Must Be Dismissed In The Absence Of A Showing By Appellant That Delay Was Occasioned By "The Neglect, Omission Or Inability Of The Clerk Of The Lower Court, The Court Stenographer Or Appellee". p. 509
Motion for rehearing filed December 1, 1970; denied December 7, 1970.
Appeal from the Circuit Court for Kent County (RASIN, J.).
Suit by Mark H. Rossen and Abe Cohen, individually and t/a A M Associates on a purchase money note made by the Regent Construction Co., Inc. and endorsed to the plaintiffs by the defendant, Sam Novak and David A. Sills, deceased. From a judgment for the defendant, the plaintiffs appeal.
Appeal dismissed; appellants to pay the costs.
The cause was argued before HAMMOND, C.J., and McWILLIAMS, FINAN, SMITH and DIGGES, JJ.
Ronald S. Goldberg for appellants.
William M. Canby, with whom were Miller, Miller Canby and Mark P. Friedlander, Sr., on the brief, for appellee.
The order for appeal in this case was filed on January 19, 1970. Pursuant to the request of the appellant, the trial court extended the time for transmitting the record to May 1, 1970. The record was actually transmitted April 28, 1970. Maryland Rule 825 b provides "the lower court shall not extend the time [for transmitting the record] to a day more than ninety days from the date after the first order for appeal is filed." The record was transmitted more than 90 days after the date the appeal was filed. It does not appear that the delay was occasioned by "the neglect, omission or inability of the clerk of the lower court, the court stenographer or appellee" as specified in Maryland Rule 825 d. Accordingly, the appeal must be dismissed. Goldman v. Tauber, 258 Md. 174, 265 A.2d 225 (1970).
If the case had been considered on its merits, we would have affirmed the decree of the trial court.
Appeal dismissed; appellants to pay the costs.