John Glenn vs. The Chesapeake Bank, Thos. S. Alexander, and others, 3 Md. 475

Le Grand, C. J., delivered the opinion of this court. The appeal in this case is from two orders passed by the circuit court, one on the 4th day of November 1852, and the other on the 5th day of January 1853. The appeal, it is agreed by counsel, was taken on the day of the last order. The record was not filed in this court until the 18th day of May 1853, being more than sixty days after the date of the last order. In this state of case a motion has been made to dismiss the appeal, on the ground that the appeal from the first order was not prayed in time, nor the record sent up to this court within the time specified in the act of 1849,

chapter 88, which is the only act authorising appeals from orders and decrees passed in cases of insolvency. We think the appeal, so far as the order of the 5th day of January 1853 is concerned, is properly before us. We are of opinion the act of 1842,

chapter 288, ought to be viewed in connection with the act of 1849,

chapter 88. The act of 1842 provides, that in no case then pending, or thereafter to be depending, in the Court of Appeals, shall any appeal be dismissed, because the transcript or certified copy of the record shall not have been transmitted within the time required by law, if it appear to the court that such delay in transmitting the record was occasioned by the neglect or omission of the clerk, and without default of the party.

In the case now before us, so far as the order of the 5th January 1853 is involved, the appellant appears to have done all that it was in his power to do.- It is conceded and agreed, that he prayed an appeal on the very day the order was passed; and, although this court would presume the clerk did his duty if it did not appear when the appeal was prayed, (Farmers Bank vs.

Mackall, 11 Gill and Johns., 456,) yet, when the fact is established, that the appeal was taken in time, and there is no evidence showing the appellant prevented the record being sent up within the proper time, the inference seems to be inevitable, that the delay is without the default of the appellant. We are of opinion, however, that the appeal from the order of the 4th day of November 1852, is entirely too late. The record shows, there were several accounts stated by the auditor and passed upon by the court.

Account D distributed the realty; account F the negroes; account G the persona] estate, exclusive of negroes, and account E disposes of the sum of $6679, allowed to appellant in account D. These accounts will be found on pages 244, ’6 and ’8 of the record. The order of the 4th day of November 1852, one of those appealed from, will be found on page 390 of the record.

It ratifies accounts D and F, and directs account E to be restated in accordance with the direction of that order; and further directs distribution of the general personal estate to be suspended, until some disposition shall be made of the suit in chancery referred to by the auditor. The effect of the order was to finally ratify accounts D and F. So far as they are concerned, the appeal of the 5th of January 1853, was too late. Account G has never been finally acted upon, the action of the circuit court being reserved to await the action of the court of chancery.

Account E having been restated and finally ratified, the appeal from the order ratifying it is properly before us, but the appeal from the order of the 4th day of November 1852, was not taken within time. The motion, therefore, so far as it has relation to the appeal from the order of the 4th of November 1852, must be sustained, and overruled so far as it refers- to the appeal from the order of the 5th day of January 1853. Order accordingly.