Agnoli v. Powers, Assignees ( 1964 )

Horney, J.,

filed the following dissenting opinion, in which Sybert, J., concurred.

We agree that Maryland Rule 825 a limits the time for transmitting the record to this Court unless a different time is fixed pursuant to section b and c and that this Court may dismiss an appeal under Rule 835 b (4) if the record is not transmitted within the time prescribed. But we do not agree as to the effect of Rule 836 regulating the filing of a motion to dismiss an appeal under 835 b. While a motion may be filed either within ten days from the date the record is filed with this Court pursuant to 836 c or the motion may be included in the appellees’ brief pursuant to Rule 836 d, the rule clearly does not authorize an appellee who files a motion under section c, which is denied because it was not filed seasonably, to renew the motion by including it in his brief. The method the appellee may use is optional, Bornstein v. State Tax Commission, 227 Md. 331, 176 A. 2d 859 (1962), which means he may choose one or the other, but he may not use both. Under the circumstances in this case, the appeal should have been decided on its merits.

Judge Sybert joins me in dissenting.