APPEALS AND ERRORS 321

Though a clerk may decline to transmit a record until it is paid for, he has no right
to decline to make the record up until he is paid, and when the transcript is delayed
on the latter account, the appeal will not be dismissed. Walter v. Second National Bank,
56 Md. 139. See also O'Hern v. Browning, 33 Md. 474.

Where the appellant takes papers from the clerk's office and does not return them
so as to enable the clerk to transmit them in time, the appeal will be dismissed. Sample
v. Motter, 5 Md. 370.

•For cases in which the appeal was dismissed, there being a failure of proof that the
delay was occasioned by the clerk, see Duvall v. Maryland Rys. Co., 114 Md. 298;
Warburton v. Robinson, 113 Md. 25; Estep v. Tuck, 109 Md. 530; Steiner v. Harding,
88 Md. 343; Mason v. Gauer, 62 Md. 263; Downes v. Friel, 57 Md. 532; Ewell v. Taylor,
45 Md. 573; Mince v. Tucker, 37 Md. 362. Cf. Miller v. Gehr, 91 Md. 714; B. & O. R. R.
Co. v. State, 62 Md. 481; Biddison v. Mosely, 57 Md. 92; Bowie v. Neal, 41 Md. 130;
Lewin v. Simpson, 38 Md. 480; Andrews v. Poe, 30 Md. 485; Brill v. State, 144 Md. 69;
Wilmer v. Haines, 148 Md. 388; Price v. State, 160 Md. 671.

Generally.

Where it appears from the affidavit of the clerk that the transcript was not turned
over to the express company for transmission to the court of appeals until twelve days
after it was paid for, the appeal will not be dismissed, although the record does not
arrive in time; delay of the express company. Bliss v. Bliss, 133 Md. 68.

Where the delay in transmitting the record is due to efforts of counsel to settle the
controversy, or where delay is equally attributable to appellant and appellee, the ap-
peal will not be dismissed. Mitchell v. Slye, 137 Md. 95.

A motion to dismiss an appeal overruled because it was shown that the failure to
transmit the record in due time was due in part to the absence of the appellee's counsel
from the city. State v. B. & O. R. R. Co., 117 Md. 288.

Appeal dismissed under sec. 66. The burden is on the appellant to bring the case
within this section. The appellant must not only give directions to enter an appeal
and transmit the record, but must pay the costs so that the record may be transmitted
in time. The clerk may not, however, withhold the making up of the transcript until
the costs are paid. Miller v. Mencken, 124 Md. 675.

Appellee held not responsible for delay in transmitting record; appeal dismissed
under sec. 6. Horsey v. Woodward, 124 Md. 362.

There being no proof to bring the case under this section, an appeal was dismissed
under sec. 6. Horseman v. Furbush, 124 Md. 582.

In a case where the delay in the transmission of the record was due to a contro-
versy over an appeal bond, the appeal was entertained. Nutwell v. Nutwell, 47 Md. 46.
(This case was decided prior to the act of 1888, ch. 34.)

The appeal will not be dismissed if the delay is not the appellant's fault. Hooper v.
Baltimore, etc., Turnpike Co., 34 Md. 521; Wilson v. Merriman, 48 Md. 334.

This section applies to appeals in insolvency cases. Glenn v. Chesapeake Bank, 3 Md.
475. And see State v. Mister, 5 Md. 16.

For cases apparently now inapplicable to this section by reason of changes in the
law, see Marsh v. Hand, 35 Md. 126; Bowie v. Maryland Agricultural College, 27 Md.
276; Dugan v. Hollins, 11 Md. 41. See also sec. 41.

This section referred to in construing sec. 6—see notes thereto.

Appeal not dismissed where delay caused by appellee as well as appellant. Locker-
man y. Trust Co., 146 Md. 341; Luray v. State, 157 Md. 640.

This section referred to in construing sec. 6. Presstman v. Fine, 162 Md. 136.

Delay not attributable to clerk in Sanitary Supply Co. v. Cooper, 160 Md. 512.

See secs. 6 and 37, and notes thereto and to sec. 12.

An. Code, 1924, sec. 45. 1912, sec. 41. 1904, sec. 41. 1888, sec. 39. 1864, ch. 322.

46. If the clerk shall have prepared the record as required by law, and
the appellant or plaintiff in error shall have neglected or omitted to pay
for such record, or by any other neglect or omission on the part of the ap-
pellant or plaintiff in error, the said record shall not be sent to the court
of appeals within time, the court from which the appeal was taken may, on
motion, strike out the entry of such appeal and proceed to execution, or
other proceedings, as if such appeal had never been entered, and there-
after no other appeal or writ of error shall be allowed.

If the trial court has struck out the appeal and on appeal from such action, it ap-
pears that the delay was not the appellant's fault, the case will be reinstated and the
appeal allowed. O'Hern v. Browning, 33 Md. 474.

Since the appellee has his remedy under this section, if he files a petition in the
court of appeals, it will be dismissed. Meloy v. Squires, 39. Md. 176.

The second appeal will not be allowed even though entered within the time pre-
scribed by sec. 36. This section applied. Meloy v. Squires, 42 Md. 378.

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