314 ARTICLE 5

Where the appellant instructs the clerk as to what papers he wishes included in
the transcript (which contains about 175 pages) five weeks before the time for the
filing expires, and the transcript would have been filed in time if the clerk had not
delayed for certain paper suitable for plats and to do other work, the appeal will
not be dismissed, although the transcript is not filed within the three months. Whit-
tington v. Commissioners of Crisfield, 121 Md. 395.

Where the delay in transmitting the record is equally attributable to the appellee
and to the appellant, the appeal will not be dismissed. Forrest Lake Cemetery v.
Baker, 113 Md. 531; McGonigal v. Plummer, 30 Md. 426. Cf. Duvall v. Maryland Rys.
Co., 114 Md. 298.

When the trial court has by granting extensions of the time for signing bills of ex-
ception, made it impossible to have the transcript prepared within the required time,
the court of appeals has allowed such further time as seemed proper. Duvall v. Mary-
land Rys. Co., 114 Md. 298.

Generally.

Record held to have been transmitted within the time allowed. Cross v. Hecker,
75 Md. 575; B. & O. R. R. Co. v. Gilmor, 125 Md. 618.
Cf. sections 6 and 66, and notes.
See secs...45, 46, 91 and 92 and notes to secs. 44 and 45.

An. Code, 1924, sec. 38. 1912, sec. 34. 1904, sec. 34. 1888, sec. 32. Rule 11.

38. In making up the transcript of the record of equity proceedings to
be transmitted to the court of appeals, it shall be the duty of the clerk of
the court from which the appeal may be taken, to omit therefrom the
formal heading and commencement of the record, stating only the titling
of the cause and the time of the commencement of the proceedings; he shall
also omit all subpoenas and other process for appearance of parties if parties
have appeared; all orders and certificates of publication stating in lieu
thereof the date of such order; the period of publication required, how pub-
lished, and the time fixed for appearance of parties thereunder; all commis-
sions to appoint guardians and orders to take testimony, and the formal
returns thereto, stating in lieu thereof the fact and time of issuing such
commissions, and passing such orders and the time of the return of such
testimony; all entries of continuances; all injunction bonds, receivers'
bonds, trustees' bonds, appeal bonds, and affidavits filed on appeal; all pro-
ceedings in the cause subsequent to the decree or order appealed from; and
all merely collateral proceedings not in anywise involved in the matter of
appeal, and which cannot be material to the hearing and decision of the case
by the court of appeals; any party to the appeal, however, shall have the
right to direct any particular part of the proceedings of the cause, that
would otherwise be omitted, to be incorporated in the transcript, the clerk
stating at whose instance the same is inserted, that costs may be awarded,
as the matter so directed to be incorporated may be deemed material or not
by the court of appeals.

While this and the following section do not refer to a condensation of the oral testi-
mony, a synopsis of the testimony and exhibits is approved. Lowes v. Carter, 124 Md.
686.

Under this section, if the appellant and appellee agree as to what shall go into the
record, the clerk's course is plain; if, however, they differ, the clerk should consult the
court, or if the court does not advise him, the clerk should act according to his under-
standing of the rules of the court of appeals, and state in a certificate to that court
why and at whose instance papers were inserted or omitted about which question is
raised. When a writ of diminution is proper. Carbon copies of testimony used in making
up record. Motion to dismiss appeal overruled. Spedden v. Balto. Refrigerating, etc.,
Co., 117 Md. 447.

If necessary, appellant can incorporate desired papers and transmit the whole without
waiting for appellee. Sanitary Supply Co. v. Cooper, 160 Md. 511.

This rule plainly violated in record of petitioner in Hohman v. Orem, 169 Md. 640.

This section referred to in construing sec. 37—see notes thereto. Wilmer v. Balti-
more, 116 Md. 340.

As to the cost of records, see art. 36, sec. 13.

Cf. sec. 12, et seq., and ^:see notes thereto. See art. 16, see. 290, et seq.