Opinion
[No. 20, January Term, 1931.]
Decided March 19th, 1931.
Record on Appeal — Time of Transmission.
The three months' period, allowed by Rule 10 of the Court of Appeals (Code, art. 5, sec. 37) for the transmission of a record to that court, cannot be extended by an agreement of the parties and an order of the trial court in accord with such agreement. p. 512
The inability of counsel for the appellant to get the co-operation of opposing counsel in the preparation of the record in an equity case does not excuse appellant's failure to transmit the record within the three months' period allowed by Rule 10 and Code, art. 5, sec. 37, since, if necessary, an appellant can incorporate desired papers, and transmit the whole, without waiting for the appellee. p. 512
Decided March 19th, 1931.
Appeal from the Circuit Court for Baltimore County, In Equity (GRASON, J.).
Bill by the Eastern Sanitary Supply Company against Ida Cooper and others, to enforce a mechanic's lien. From a decree dismissing the bill, the plaintiff appeals. Appeal dismissed.
The cause was argued before BOND, C.J., PATTISON, ADKINS, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.
Albert A. Sapero, with whom was Bernard B. Feikin on the brief, for the appellant.
Louis M. Silberstein, William P. Cole, Jr., Silberstein Gorfine, and Heninghausen Stein, submitting on brief, for the appellees.
Upon an appeal, from a decree in equity, entered on August 22d 1930, the record was filed in this court on December 19th, 1930, or after the expiration of three months allowed by rule 10 of this court and section 37 of article 5 of the Code. And, in explanation, the appellant has filed an affidavit showing that counsel for the appellee, by reason of press of other business, found it difficult to give attention to the contents of the record, to determine whether it included all that he might consider necessary to a proper presentation of the case, and that, after the failure of appellant's efforts at a timely settlement by agreement, counsel for both parties adopted the expedient of extending the time allowance. The record as printed contains an agreement of counsel and an order of the trial court, both dated November 14th, 1930, for an extension of time to December 22d 1930.
This court is clear in its opinion that the statute and rule of the Court of Appeals cannot be dispensed with or suspended by such an agreement or order of court. The question raised by the facts recited is only the usual one, whether under article 5, section 44, of the Code, the delay can be excused because attributable to the clerk of the trial court or to the appellee. And we think it cannot be so excused, for the reason that it is not the intention of the statutes and rules, and it is not necessary, that they should thus be made to defer to the convenience of parties. Inability of counsel for an appellant to get the co-operation of opposing counsel does not prevent transmission of a record in time. Rule 11 and section 38 of article 5 of the Code direct to a large extent the making up of records in equity cases, and, if necessary, an appellant can incorporate desired papers, and transmit the whole, without waiting for the appellee. Ewell v. Taylor, 45 Md. 573, 575; Wilmer v. Baltimore, 116 Md. 338, 340, 81 A. 685; Spedden v. Refrigerating Co., 117 Md. 443, 448, 84 A. 150.
Appeal dismissed.