Northern Central Railway Co. v. Rutledge

48 Md. 262, 1878 Md. LEXIS 101

• Court: Court of Appeals of Maryland
• Decided: March 26, 1878
• Status: Published

Opinion

Brent, J.,

delivered the opinion of the Court.

The appeal in this case must he dismissed. Where the record is not transmitted within the time prescribed, the burden of proof is upon the appellant to relieve himself from the presumption, which the rule regarding appeals attaches to him. Rule 16, 29 Md.

This Court, as well as suitors, is strictly hound to the observance of this rule, which by the terms of the Constitution, Art. 4, sec. 18, has “ the force of law.” If according to its requirements the appeal is not properly before the Court, it has no jurisdiction to hear and determine the questions it may involve.

To give this jurisdiction, where the appeal appears upon the face of the record to he too late, the rule reserves the right to maintain the appeal, if the appellant shall show that the failure to transmit the record in time was not through any fault of his. To do this, the appellant must furnish proof, from which the Court will be able to see, that the burden put upon him is fully answered. This proof must be under oath, generally in the form of affidavits, unless it be of some matter, to which an official seal, under the rules of evidence, will impart verity.

(Decided 26th March, 1878.)

The only proof, offered in this case, is a certificate of the clerk under the seal of his office, “that the delay of sending up the record in this cause has been in no way attributable to the defendant.” This form of proof cannot be adopted as admissible. In the first place it undertakes to certify to a conclusion, which is only to be reached by this Court, upon its formal judgment, after a consideration of such facts as may be presented to it, to wit, that the delay is in no way attributable to the defendant. It is possible that such facts as might induce the clerk to believe the defendant was without fault, might bring the Court to a very different conclusion.

In the second place, apart from the intrinsic defect of the statement in this certificate, it is not such a certificate as the clerk can legally give under his seal of office. The seal imparts to it no additional solemnity or weight, which can make it admissible in proof any more than would he any other statement unsupported hy oath.

The presumption against the appellant has not been removed, and this Court has no jurisdiction over the case. The appeal must therefore be dismised.

Appeal dismissed.