Summary
In Platt v. Wilson, 191 Md. 371, 62 A.2d 191, we held that we will not undertake to pass upon testimony contained in the transcript but not printed in the appendix to the brief.
Summary of this case from Prime Contractors v. M. C.COpinion
[No. 6, October Term, 1948.]
Decided November 10, 1948.
Appeal — Dismissal of — For Violations of Appeals Rules — Failure to Print Testimony in Appendix to Brief (Rule 39) — Failure to Include Opinion Below (Rule 36) — Laches — As Bar to Claim — Mere Delay, with No Showing of Unreasonableness or Prejudice.
The Court of Appeals will not undertake to pass upon testimony contained in the transcript, but not printed in an appendix to the brief, as contemplated by Rule 39 of the Court of Appeals, so as to be available to each member of the Court, and, if there is no appendix, the Court may dismiss the appeal. pp. 373-374
Rule 36 of the Court of Appeals requires that any opinion of the court below should be included in the appendix to the appellant's brief and the Court may dismiss the appeal for violation of this rule. p. 373
A mere delay in making a claim, in the absence of facts showing that the lapse of time was unreasonable or prejudicial, does not bar recovery. p. 374
In the case at bar, the ground upon which the appellee contended that the automobile should be impressed with a trust was that the appellee had furnished all the money for its payment to her fiance, now deceased. The administrator of his estate was the appellant. Appellant contended that there was no evidence legally sufficient to establish a resulting trust and that appellee was guilty of laches and estopped from asserting her claim by her delay until after the estate had been administered. There was no appendix containing testimony in the appellant's brief, as required by Appeals Rule 39, the appendix did not contain the opinion of the chancellor, as required by Appeals Rule 36, and the record did not contain important documentary and corroborative testimony of payments by appellee, referred to in the chancellor's opinion. The Court dismissed the appeal for violation of its rules. The Court remarked that it was difficult to see how testimony that clearly supports the allegation of payment by the plaintiff could in any event justify a reversal on an issue of disputed fact. In regard to the contentions of laches and estoppel, the Court stated the principle contained in the next preceding paragraph of this syllabus, supra. pp. 373-374
Decided November 10, 1948.
Appeal from the Circuit Court for Prince George's County (GRAY, JR., J.).
Suit in equity to impress an automobile with a trust by Irene S. Wilson against John W. Platt, individually and as administrator of the estate of William C. Platt, deceased. From the decree, the defendant appeals.
Appeal dismissed, with costs.
Submitted on brief before MARBURY, C.J., DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.
Submitted on brief by McKay Gordon for the appellant.
Submitted on brief by Walter L. Green, Green, Whalin, Babcock Bell and Henry A. Babcock for the appellee.
This appeal is from a decree of the Circuit Court for Prince George's County, in equity, directing an administrator to assign title to an Oldsmobile to the appellee, upon payment by her of the sum of $238.91, or, if the administrator should fail or refuse to assign, appointing a trustee without bond to make the assignment. The suit was instituted by the appellee in order to impress the automobile with a trust in her favor, upon the allegation that she had supplied all the funds for the purchase of the car, which was titled in the name of the decedent, her fiancee.
The appellant, the father of the decedent who had assigned the title to himself, individually, contends that there was no evidence offered at the trial legally sufficient to establish a resulting trust, and that the appellee was guilty of laches and estopped from asserting her claim by her delay until after the estate had been administered. The appellee has filed a motion to dismiss the appeal on the ground, among others, that the appellant has printed no appendix to his brief.
We think the motion must be granted. We have indicated in several recent cases that this court will not undertake to pass upon testimony contained in the transcript, but not printed in an appendix to the brief, as contemplated by rule 39 of this court, so as to be available to each member of the court. Hill v. State, 190 Md. 698, 703-704, 59 A.2d 630, 633; Naughton v. Paul Jones Co., 190 Md. 599, 604-605, 59 A.2d 496; Butler v. Reed-Avery Co., 186 Md. 686, 48 A.2d 436; Strohecker v. Schumacher Seiler, 185 Md. 144, 146, 43 A.2d 208. Not only is there no appendix containing testimony, but the careful opinion of the chancellor, incorporated in the transcript, is not reproduced in an appendix, as required by Rule 36 of this court. It appears from a reading of this opinion that important documentary and corroborative testimony of payments by the appellee, relied upon by the chancellor, is not in the record at all. The incomplete portions of the testimony for the plaintiff, printed in the appellant's brief, cannot supply this deficiency. Moreover, it is difficult to see how testimony that clearly supports the allegation of payment by the plaintiff could in any event justify a reversal on an issue of disputed fact. Nor can we say that a mere delay in making claim, in the absence of facts showing that the lapse of time was unreasonable or prejudicial, would bar recovery.
Appeal dismissed, with costs.