author: Thompson, J.,

text:
    RAYMOND CARRICK v. JANE CARRICK HENLEY et al.
    [No. 156,
    September Term, 1979.]

      Decided November 8, 1979.

    The cause was submitted on brief to Thompson, Moylan and Moore, JJ.

      Submitted by Francis J. Pelland and Sadur & Pelland, Chartered, for appellant.
    No appearance or brief on behalf of appellees.
   Thompson, J.,

delivered the opinion of the Court.

On March 17, 1978 the will of Charles R. Carrick, Sr. was admitted to probate in the Orphans’ Court for Prince George’s County and by administrative order Raymond Carrick, the appellant, was appointed personal representative in accordance with the will. On April 12, 1978 Jane Carrick Henley and Charles R. Carrick, Jr. filed a caveat to the will. Glen M. Carrick, the remaining child of the decedent, filed an identical caveat May 18, 1978 praying, inter alia, that Raymond Carrick be removed as the personal representative and that Ralph W. Powers, Jr., or some other suitable person, be appointed special administrator in his place. After a hearing on May 19, 1978 the Orphans’ Court by order dated June 29, 1978 removed Raymond Carrick, as personal representative and appointed Mr. Powers as special administrator.

In its opinion the court said in part:

“As to the administrative appointment of a Personal Representative, the law is clear. The Estates and Trusts Article, Maryland Annotated Code, Section 6-307, reads:
‘(a) GENERAL — The appointment of a personal representative who has been appointed by Administrative probate is terminated by a timely request for judicial probate. The validity of an act performed by him as personal representative is not affected by this termination.’
“Accordingly, we find as a matter of law that Mr. Raymond F. Carrick’s appointment as Personal Representative was terminated by the ‘Caveat and Request for Judicial Probate’ filed in this Court on the 13th day of April, 1978. Further, we find that Mr. Raymond F. Carrick had the powers and duties of a special administrator, pending further order of this Court. We find, as a result of this family dispute, that the parties ability to administer the estate are severely limited.
“Inasmuch as the final decision as to the appointment of a Personal Representative is contingent upon the conclusion of the Caveat, it would appear to the Court that the best interests of all parties concerned, as well as that of the estate, would, be served by the appointment of an independent third party to manage the affairs of the Estate as Special Administrator until such time as the Caveat proceedings before the Circuit Court for Prince George’s County are concluded and a personal Representative appointed in accordance therewith.
ORDERED, that Ralph W. Powers, Jr., be and he is hereby appointed Special Administrator of the Estate of Charles R. Carrick, Sr., Deceased ...”

Raymond Carrick timely appealed to the Circuit Court for Prince George’s County which dismissed the appeal for lack of jurisdiction, on the ground that the order of June 29 was interlocutory in nature and was not a final judgment that could be appealed. Raymond Carrick appealed the dismissal to this Court. He argues that the Circuit Court erred in its determination that the order of the Orphans’ Court appointing a special administrator was interlocutory and not appealable. It is interesting to note that a party may appeal from a final order of the Orphans’ Court either to this Court or with certain exceptions, not here relevant, to the Circuit Court. In the event the appeal is to the Circuit Court the case is heard de novo. Md. Code, Courts and Judicial Proceedings Article provides:

“§ 12-501. Appeal to Court of Special Appeals.
A party may appeal to the Court of Special Appeals from a final judgment of an orphans’ court. However, if the final judgment was given or made in a summary proceeding, and on the testimony of witnesses, an appeal is not allowed under this section unless the party desiring to appeal immediately gives notice of his intention to appeal and requests that the testimony be reduced to writing. In such case the testimony shall be reduced to writing at the cost of the party requesting it.
“§ 12-502. Appeal to circuit court or Superior Court of Baltimore City.
(a) In general; exception in Harford and Montgomery counties. — Instead of a direct appeal to the Court of Special Appeals pursuant to § 12-501, a party may appeal to the circuit court for the county or to the Superior Court of Baltimore City from a final judgment of an orphans’ court. The appeal shall be heard de novo by the appellate court, and it shall give judgment according to the equity of the matter. This subsection does not apply to Harford County or Montgomery County.”

It is apparent that if an appellant appeals initially to the Circuit Court, or to this Court, from an order of the Orphans’ Court, that order must be final. Although in most instances the determination of whether or not an order is final is relatively easy, in some cases it is extremely difficult. We think the Circuit Court for Prince George’s County erred in determining that the order of the Orphans’ Court was not final and in dismissing the appeal without proceeding to hear the issue de novo.

Sykes, Probate Law and Practice § 243 (1956) sets forth in general the judgments which are final and those which are not final. In Sections 243 and 244:

“In general an appeal will lie from any decision of the Orphans’ Court which transcends its restricted powers and from its act done in contravention of a statute. It has been held that an appeal may be taken from an order appointing an administrator ad litem, from an order revoking the probate of a will, from an order revoking letters, from an order refusing to revoke letters, from an order dismissing a petition asking that the Court refuse to grant letters testamentary or of administration on the ground of the decedent’s nonresidence, from an order granting or refusing to grant issues, from the ratification of a separate administration account on an appeal by a co-executor and a distributee, from an order relating to the allowance of counsel fees, and from an order directing the mode of distribution of a decedent’s estate among his creditors.
“To be appealable, the order of the Orphans’ Court must be final. Thus, an order merely determining in the affirmative the question of the Court’s jurisdiction to hear the controversy and thereafter to decide whether the persons applying shall be made parties, is not a final order from which an appeal lies. Again, where the Orphans’ Court adjudged that an answer was not sufficient and ordered the respondent to answer further, the order was not final, and therefore, not appealable. Other examples of interlocutory orders are an order merely requiring executors to appear and show cause why they should not be removed, an order directing an administratrix to appear to be examined under oath under penalty of annulment of her appointment, and an order rescinding an order authorizing and directing an executor to pay a counsel fee. Additional examples of such orders are given in the notes.” (Footnotes omitted).

It should be noted Sykes cites Lewis v. Mason, 156 Md. 32, 143 A. 585 (1928) to support the statement in Section 243 that when the Orphans’ Court appoints an administrator ad litem, the order is final. In that case an order of the Orphans’ Court appointing such an administrator was reversed and the court said:

“The beneficiaries of the will were legally capable of defending it against the caveat, and, so far as the record shows, they were hot entitled to have their defense made by an administrator ad litem at the charge of the estate.” Id. at 33.

Md. Code, Estates and Trusts Article § 6-401 provides as follows:

“(a) When appointed. — Upon the filing of a petition by an interested party, a creditor, or the register, or upon the motion of the court, a special administrator may be appointed by the court whenever it is necessary to protect property prior to the appointment and qualification of a personal representative or upon the termination of appointment of a personal representative and prior to the appointment of a successor personal representative.
“(b) Qualifications. — A suitable person may be appointed as a special administrator, but special consideration shall be given to persons who will or may be ultimately entitled to letters as personal representatives and are immediately available for appointment.”

In a note in the Annotated Code it is explained that this section was designed so that the appointment of a personal representative pendente lite, as well as ad colligendum, and during minoritate, could all be handled under the title “special administrator.” It is apparent that in the present case the administrator was what would formerly have been called an administrator ad colligendum because he was appointed for the purpose of preserving the estate for those who eventually may be determined to be entitled thereto after the caveat has been decided. It would seem that an order appointing an administrator ad colligendum is a final order under the above sections.

Our holding that the action of the Orphans’ Court in appointing the special administrator was an appealable order, is however, further supported by Peat, Marwick, Mitchell & Co. v. Los Angeles Rams Football Co., 284 Md. 86, 394 A.2d 801 (1978), in which the Court said:

“Peat & Co., however, asserts that this determination [that the order was not final] does not end the matter because the circuit court’s order is appealable under the so-called ‘collateral order exception’ appended to the final order requirement. This doctrine, recently applied in the criminal context by this Court in Stewart v. State, 282 Md. 557, 571, 386 A.2d 1206, 1213 (1978), and Jolley v. State, supra, 282 Md. at 357, 384 A.2d at 94, was first articulated by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in dealing with the appealability of an order denying a motion for the posting of security for costs under the federal appeals statute that is similar to section 12-301. The concept is narrow in scope, however, for, as the Supreme Court has articulated, if the order is to come within the ‘small class’ of cases included in the final judgment rule under Cohen it must meet four requirements: ‘[T]he order must [(1)] conclusively determine the disputed question, [(2)] resolve an important issue [, (3) be] completely separate from the merits of the action, and [(4)] be effectively unreviewable on appeal from a final judgment.’ ” Id. at 91-92.

See also, Clark v. Elza, 286 Md. 208, 406 A.2d 922 (1979). It is apparent that the order in the present case if not otherwise final, comes within the "collateral order exception” set forth above. It will be observed: (1) that the order finally disposed of the question as to who is to be the special administrator, which is the only one here in dispute; (2) the issue is important; (3) it is apparent that this appeal is completely separate from the merits of the caveat; and (4) that the order would be completely unreviewable except on direct appeal because as we have stated, the special administrator’s duties would have been completed by the time the caveat has been decided.

Under Md. Rule 1085 we will briefly express our views on the substantive issues in order to provide guidance to the trial court. Although the appellant strongly argues that his right to administer was terminated for insufficient reason under Md. Codo, Estates and Trusts Art. § 5-207 and § 6-307, the request for judicial probate automatically terminated the administrative probate previously granted and no grounds for his removal were necessary. It should also be noted that under § 6-401 the court is not required to appoint a special administrator from those who would be entitled under § 5-104 but only to give them “special consideration.”

Order dismissing appeal reversed.

Case remanded for further proceedings in accordance with this opinion.

Appellees to pay the costs.

      . If a party appeals to the Circuit Court under § 12-502 (a) a further appeal may be made from the final order of that court to this Court. See Jennings v. Jennings, 20 Md. App. 369, 371 n. 4, 315 A.2d 816, cert. denied, 271 Md. 738 (1974).

      . The statute does not attempt to define what is a final judgment for the purpose of appeal but simply says:
      § 12-101 (f) "Final judgment means a judgment, decree, sentence, order, determination, decision, or other action by a court, including an orphans’ court, from which an appeal, application for leave to appeal, or petition for certiorari may be taken.”

      . The eases, at least with reference to permanent personal representatives, have pointed out that the right to administer an estate is a valuable right; Johnson v. Macaboy, 226 Md. 23, 30, 171 A.2d 474 (1961). In the instant case although the appointment of a special administrator is in a sense temporary, for all practical purposes the estate will be all but completely administered by the time caveat proceedings are resolved.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    WILLIAM H. ONDERDONK v. HANDGUN PERMIT REVIEW BOARD OF THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES OF MARYLAND
    [No. 165,
    September Term, 1979.]

      Decided November 8, 1979.

    The cause was argued before Gilbert, C. J., and Morton and Wilner, JJ.

      William H. Onderdonk in proper person.
    Submitted on brief by Stephen H. Sachs, Attorney General, H. Edgar Lentz, Assistant Attorney General, and James J. Doyle, III, Assistant Attorney General, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

William H. Onderdonk is indignant because his request to be issued a permit to carry a handgun has been denied by the Superintendent of the Maryland State Police (Superintendent), the Handgun Permit Review Board of the Department of Public Safety and Correctional Services of the State of Maryland (Board), and by the Baltimore City Court (Greenfeld, J.). Onderdonk has now carried his quest to this Court where he asserts tenfold reasons why he believes we should reverse the Baltimore City Court and remand the matter to it with instructions that it direct the issuance to Onderdonk of the permit he desires.

There is nothing remarkable about the facts of this case. Onderdonk, as he is permitted to do by Md. Ann. Code art. 27, § 36E, sought a permit to carry a handgun for “Target practice and self-defense.” After an investigation by a trooper of the Maryland State Police failed to disclose any reasons other than “target practice” and the fact that Onderdonk’s previous residence had “been broken into several times in the past,” the application was rejected on the ground that appellant “[d]oes not have a good and substantial reason to wear, carry or transport a handgun.” Md. Ann. Code art. 27, § 36E(a)(6). The Board, without conducting a hearing, Md. Ann. Code art. 27, § 36E(g)(ii), “found” that Onderdonk’s “request for a hearing was not justified” and then, by a vote of 5 to 0, affirmed “the action of the Superintendent of the Maryland State Police.”

Judge Greenfeld properly determined that he was not at liberty to substitute his judgment on the facts for that of the Board so long as the Board’s decision “is not arbitrary.” He further said that Onderdonk’s reading of the Second Amendment to the Constitution of the United States is “much too broad and [it] does not extend to the absolute right of private citizens to carry guns.”

Onderdonk posits to us that Md. Ann. Code art. 27, §§ 36B-F are unconstitutional because they conflict with the Second Amendment. Onderdonk advances only his argumentative personal view of the constitutionality vel non of the Maryland Handgun Law. We are not furnished a reference to any authority that supports his position, nor has he cited us any appellate decision in Maryland or elsewhere that has considered the issue pro or con.

Md. Ann. Code art. 27, §§ 36B-P do not prohibit one from owning a handgun. The thrust of the law is directed at “wearing, carrying and transporting” the gun or guns. By its terms, section 36B(c)(3) excludes from its ambit “any person wearing, carrying, or transporting a handgun used in connection with a target shoot, formal or informal target practice, sport shooting event, hunting, trapping, dog obedience training class or any military activity while, engaged in, on the way to, or returning from any such activity.” It would appear that Onderdonk is already allowed by section 36B(c)(3) to do those things for which he sought the permit. Onderdonk has not demonstrated any reason why the Board was wrong on the facts.

A plethora of cases hold that a statute, such as Maryland’s, which reasonably regulates the “right to bear arms” does not violate the Second Amendment’s limitation on the federal government. Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 875, 38 L.Ed. 812, 813 (1894); Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 584, 29 L.Ed. 615, 619 (1886); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876); United States v. Johnson, 497 F.2d 548 (4th Cir. 1974); City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905); Commonwealth v. Davis, 369 Mass. 886, 890, 343 N.E.2d 847, 850 (1976); Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968), appeal dismissed, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed.2d 748 (1969).

We note that the bearing of arms was never treated as an absolute right at common law. “It was regulated by statute as to time and place as far back as the Statute of Northhampton in 1328 and on many occasions since.” United States v. Tot, 131 F.2d 261, 266 (3rd Cir. 1942), rev’d on other grounds, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).

The State’s regulation of “wearing, carrying and transporting” of handguns is but a modern improvement on the Statute of Northhampton. It does not violate the Second Amendment because that amendment is not applicable to the States. The State statute, being a reasonable exercise of police power, is constitutional.

The remaining nine arguments made by Onderdonk question the wisdom of handgun regulations. He uses, if not abuses, the Court as a sounding board for his thoughts on the advisability of handgun control legislation. Irrespective of the validity vel non of Onderdonk’s views, we do not sit as a superlegislature to review the sagacity of legislative enactments. Our function is to ensure that a statute provides a real and substantial relation to the public health, morals, safety and welfare of the citizens of the State. Edgewood Nursing Home v. Maxwell, 282 Md. 422, 384 A.2d 748 (1978). See also Burton v. Sills, supra. Inasmuch as the appellant has not raised the contention that the statute fails to bear such a relationship, we do not decide it. Md. Rule 1085.

Judgment affirmed.

Costs to be paid by appellant.

      . Those are the only reasons stated in the “Application for a permit to carry a handgun.” MSP Form # 95.

      . Quoted from the investigation report made by the M.S.P.

      . The Board consists of five members. Md. Ann. Code art. 27, § 36E(g).

      . The Second Amendment provides: “A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”

      . “This is one of the Amendments that has no other effect than to restrict the powers of the National government, leaving the people to look for their protection against violation by their fellow citizens...." Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 584, 29 L.Ed. 615, 619 (1886).

      . The other nine arguments are:
      “II. All citizens have the right to keep handguns for home protection and for personal protection.
      III. It is impossible to eradicate all handguns since a so-called zip-gun can be made from everyday items and spare parts.
      IV. The failure of the Eighteenth Amendment of the United States Constitution prohibiting liquor points up the failure of such a restrictive law.
      V. This country was founded by arms and has been maintained with arms ever since.
      VI. More people are killed each year by automobiles than by handguns.
      VII. It is necessary to have an adequate gun industry in time of peace so as to have available an adequate gun industry in time of war.
      VIII. Citizens should have training in the proper use of handguns in time of peace so'as to be available in time of war or any other emergency.

        6. (Continued)
      IX. The United States has always been behind in weapons, ships, and machines at the outbreak of each major war.
      X. Arms are for the protection of Americans [sic] and its citizens are not to be used by politicians to continuously involve the United States in foreign wars.”


author: Wilner, J.,

text:
    JOHN C. GREEN v. GARNETT BEATRICE GREEN
    [No. 168,
    September Term, 1979.]

      Decided November 8, 1979.

    The cause was argued before Thompson, Moylan and WlLNER, JJ.

      Weldon Leroy Maddox for appellant.

      Michael D. Steinhardt for appellee.
   Wilner, J.,

delivered the opinion of the Court.

John and Garnett Green mutually plighted their respective troths on October 8, 1948. On May 22, 1954, their union produced Thomas Green, and on April 21, 1955, it produced his brother Herman. The parties separated in 1961 and did not cohabit together thereafter. Mrs. Green (appellee) sued Mr. Green (appellant) for divorce in 1968, but, because of fiscal constraints, was unable to prosecute her action until 1971.

At least part of her financial problem was apparently due to the failure of appellant to provide support for her or the minor children in her care. At some point, the awesome power of the State of Maryland was invoked, for, on August 31, 1970, the Criminal Court of Baltimore, in a criminal non-support action, placed Mr. Green on probation, conditioned upon his paying, through the court’s probation department, the sum of $1,150 per year for the support of his wife and two children. The order broke this sum down into $250 for the support of Mrs. Green and $450 for each of the children. Appellant was also directed to amortize his then-current arrearage of $5,661.69 at the rate of $200 a year, payable on December 31 of each year. Payments for Herman were to be sent to one Harry Cox, with whom Herman was then residing.

On November 8, 1971, a divorce decree was entered by the Circuit Court No. 2 of Baltimore City, finally ending the marriage. The decree awarded custody of Thomas and Herman, then 17 and 16 years of age, respectively, to Mrs. Green and directed appellant to pay to Mrs. Green $1,150 per year “for the support and maintenance of said children and Complainant.” In addition, appellant was ordered to pay appellee $200 a year “on an outstanding arrearage until such time as said arrearage is brought to date____” Finally, the decree stated that “the matter of alimony shall be reserved for the future determination of this Court.”

We thus have a decree that (1) provided an annual lump sum for the support of Mrs. Green and the children, without a breakdown as to how much was for each, (2) made reference to an outstanding arrearage but no specific reference to the earlier order of the Criminal Court and no ascertainment of the then-current amount of arrearage, and (3) notwithstanding its express provision of support for appellee, reserved for future determination the question of alimony.

On February 14, 1973, the equity court ordered” appellant to appear before it on March 12, following, to show cause why he should not be held in contempt for “not obeying the Order of this Court passed on the 8th day of Nov., 1971, directing the payment of Alimony, pendente lite, by him to the plaintiff....” (Emphasis supplied.) Several things are noteworthy about this Order. The most striking thing, of course, is that it referred only to alimony pendente lite, which was not the subject of or mentioned in the November 8,1971, decree. The record does not reveal that a petition was filed by Mrs. Green, or anyone else, seeking this relief, so what the impetus for this peculiar Order was is not at all clear. The order has stamped on it a certificate of the probation department that the arrearage as of February 5, 1973, was $8,151.64 and that nothing had ever been paid on the arrearage, but the certificate does not indicate how much of that arrearage is for “alimony” or spousal support (much less alimony pendente lite) and how much is for accrued child support.

Mr. Green is a seaman, and he was apparently either on a voyage, or about to undertake one, but in either event was expecting to be at sea on the day of his scheduled court appearance. On March 9, 1973, his attorney arranged for a postponement of the March 12 hearing on that account, writing to counsel for appellee that appellant would “make a payment on the arrears as soon as possible” and advising that he (appellant) “will be on a 2 month sea trip” but was “supposed to make an allotment to me to take care of the payments.” There is an unsigned handwritten note on the Order itself (not reflected on the true test copy): “3/12/73: By agreement of counsel (W.C. Maddox and M.D. Hyman) case to be postponed until man in case returns from sea trip.”

Nothing further transpired until March 9, 1977 — four years later ■— when the court issued another show cause order. This one, also without benefit of a petition, directed appellant to appear in court on April 6, 1977, to show cause why he should not be held in contempt for disobeying the November 8, 1971, order “directing the payment of Chila Support....” (Emphasis supplied.) This order also contained a certificate of the probation department with regard to arrearages. As of March 7, 1977, the arrearage shown was $3,050.64, with a statement or indication that nothing had ever been paid on it.

In the normal course of events, the case was referred to the domestic relations master, Miss Lucy Ann Garvey, but, upon appellant’s request for a court hearing, the file was returned to the judge on April 7, 1977, pursuant to Supreme Bench Rule 571-D. On May 12, 1977, the court sent it back to the master for hearing. The master, in turn, referred the matter to the probation department for a determination of how much, if any, of the arrearage was due to the Department of Social Services.

On August 23, 1977, Master Garvey filed a report finding, among other things, that (1) at the time of the 1971 decree, the court had no jurisdiction to award alimony, (2) therefore, the contempt proceeding could involve only an arrearage in child support, (3) the amount of that support should be determined in accordance with the 1970 Criminal Court order — i.e., $450 per annum for each child, (3) the support obligation commenced December 31,1971, (4) Thomas became emancipated on May 14, 1973, and Herman became emancipated on August 31,1975, (5) the requirement of child support should therefore be suspended as of those dates, (6) appellant was entitled to a credit of $450 for a period of time that Herman was incarcerated, (7) the amount of child support arrearage, taking into account the above factors, was $8,482.74, (8) of that amount, $7,729.64 was due to the Department of Social Services and $753.10 was due to appellee, (9) the amount due to social services should be paid at the rate of $15 a week, and (10) payment could be enforced through contempt proceedings.

Appellant excepted to this report; however, after a hearing before the court, the exceptions were denied, and the findings and directives of the Master were adopted in the form of a court order. It is from that order that this appeal is taken.

(1) Power to Punish for Contempt

The first six issues raised by appellant are consolidated in his one argument that the court erred in exercising (or threatening to exercise) its power to punish him for contempt in order to enforce payment of these arrearages. He begins by suggesting that support should have been terminated as to Thomas and Herman when they reached their eighteenth birthday — i.e., that Laws of Md., 1973, ch. 651, reducing the age of majority from 21 to 18, should be applied with respect to the 1971 divorce decree. Reading that decree in light of what the Court of Appeals said in Monticello v. Monticello, 271 Md. 168 (1974), however, we reject that suggestion, and conclude that the obligation of support continued until the earlier of the children’s emancipation or 21st birthday.

The real thrust of appellant’s argument is that the power to enforce the payment of child support through contempt proceedings ends when the child ceases to be legally dependent — when he attains his majority or is emancipated. Contending that the appellate courts of Maryland have yet to consider this question, he asks that we adopt what appears to be the “majority” rule supporting his contention.

The issue raised here has been considered in a number of other States, and there has developed a substantial split of authority with respect to it. The courts in at least eight States have agreed with the approach urged by appellant, concluding that once the child attains his majority (or otherwise ceases to be dependent), accrued arrearages of support may not be enforced through contempt proceedings. Five, and possibly six, States have taken an opposite view and have recognized or applied the contempt power as a legitimate means of enforcing the payment of arrearages in a proceeding commenced after the child has become of age or self-sufficient. Most of the cases are reviewed in Anno.: Power of Divorce Court, After Child Attained Majority, To Enforce By Contempt Proceedings Payment Of Arrears Of Child Support, 32 A.L.R.3d 888.

Some of the courts have expressed the reasoning behind their decision; some have not. The clearest explanation for the view espoused by appellant was provided in Fox v. Fox, supra, footnote 5, 371 N.E.2d 1254, 1255. The court, reviewing the cases establishing what it considered to be the majority rule, stated:

“The rationale of these decisions is that the court’s jurisdiction to enforce support money judgments by the extraordinary remedy of contempt is predicated upon the continued dependency of the children, and the need to insure support for these children during their minority. However, when a child reaches majority, the purpose and justification for this extreme remedy terminates.”

The concern of the legislature, said the court, was with the support of minor children, not those who had already attained their majority. Debts due to them, or to a parent on their account, could be enforced in more traditional ways. Thus, the power of contempt, “a harsh and extreme sanction ... especially as it concerns the payment of a money decree, should be resorted to only where there is no other reasonable means by which the judgment may be enforced and then not in the first instance.” Id. at 1255.

The principal rationale on the other side, which has not been articulated quite as well, seems to be that, in the absence of some statutory provision to the contrary, disobedience of a court order to pay child support remains as contumacious after the child loses his dependency as before. The affront to the court is the same. The Michigan court noted as well the element of fairness in Wasson v. Wasson, supra, footnote 6, 216 N.W.2d 594, 597. The mother had to expend her own money to maintain the children, and “[i]n all fairness ... should not be denied the use of contempt proceedings as an effective means to enforce her husband’s duty to support his children.”

Yet another consideration, which may be especially germane in this case, is that if the custodial parent loses the remedy of contempt once the child becomes emancipated or of age, and is left only with the ability to execute judgment on the obligor’s property, he or she may be left with no effective remedy at all. An obligor who has little or no property subject to attachment and who is crafty or simply fortunate enough to elude the law’s grasp until his children are 18 or on their own may escape his legal and parental obligation entirely. The effect of this, of course, is to impose upon the custodial spouse, or, as in this case, largely upon society, the financial burden that is rightfully and lawfully his without any practical means of redress.

Were this truly a case of first impression in Maryland — were we free to choose between these two opposing points of view unfettered by constraint of statute or judicial authority — we would choose the approach that allows for the continued use of contempt proceedings for the reason last mentioned. We would not consider it sound judicial policy to encourage in any way the evasion of one’s legal duty to support his or her minor children; and thus we believe the less restrictive view to be the better one. Fortunately, the same result is indicated both by case law and by statute.

In McCabe v. McCabe, 210 Md. 308 (1956), the Court of Appeals sub silentio approved the use of the contempt power to enforce payment of child support arrearages long after the children had attained their majority. The principal issue raised in that case was whether a Maryland equity court could assume jurisdiction and enforce through traditional equity powers, including contempt, arrearages accruing under a Nevada decree. As the record extract in that case points out, the children in question were born in 1928 and 1929, respectively. A 1931 Nevada divorce decree obligated the father to pay $40 a month child support and $60 a month alimony. In 1955 — when the children were well over 21 — the mother sued in a Maryland court of equity asking that the court determine an arrearage of $25,890 for “past due alimony and support and maintenance for the two children” and “by suitable decree enforce such rights as might be found to exist in the complainant against the respondent.”

Although obviously aware of the fact that the children were then over 21, the Court of Appeals nevertheless held that the contempt power was available to enforce the arrearage, both as to alimony and child support. At page 314, the Court stated:

“This Court has held that alimony represents a duty and not a debt.... In Oles Envelope Corp. v. Oles, 193 Md. 79, the Court said that the obligation to pay alimony is not a debt but a duty resting upon sound public policy, and added: ‘Hence this obligation may be enforced by attachment of the person for contempt, and the defendant may be imprisoned unless he can purge himself of the contempt by paying or by showing that he has neither the estate nor the ability to pay.’ Since the 1950 amendment of Art. Ill, Sec. 38, Constitution of Maryland, and the decision in Zouck v. Zouck, 204 Md. 285, obligation of support of minor children under a decree would, like alimony, be considered a duty, not a debt. The public policy of Maryland would seem clearly to permit the relief sought by the wife in this case____” (Emphasis supplied.)

It is true, of course, that the issue raised here was not discussed by the Court in McCabe, and we can therefore point to no language in the Opinion that binds us to one theory or another. But the fact that the Court did approve the full panoply of equity powers, including contempt, knowing that the children had already attained their majority, is obviously significant. We can only assume that the Court knew full well what it was doing and, if it believed that contempt proceedings were inappropriate in such a case, would have said so. See also Bradford v. Futrell, 225 Md. 512 (1961).

The McCabe decision had one other noteworthy effect. In mentioning, and indeed relying upon, the 1950 amendment to Md. Const., art. Ill, § 38, the Court made clear that the obligation to pay child support arrearages remained a duty, rather than merely a debt, even after the loss of dependency, and that enforcement of the duty through contempt proceedings would not contravene that Constitutional provision. This is consistent with the plain wording of the Constitutional provision itself which gives no indication whatever that the higher status of a child support order is lost once the dependency is lost.

Reliance upon the 1950 Constitutional amendment in McCabe becomes even more significant in light of Md. Annot. Code art. 16, § 66J. Originally enacted in 1955 as part of the then-bastardy laws (Laws of Md., 1955, ch. 427), and retained when paternity actions and the enforcement of child support orders entered in such actions were placed under the jurisdiction of the equity courts (Laws of Md., 1963, ch. 722), that section provides, in relevant part:

“(a) The orders of court directing payments for the support and maintenance of the child or with respect to any other matter are enforceable in the same manner and to the same extent as other orders of the equity courts of this State, including, but not limited to, citation and imprisonment for contempt....”
“(d) Any moneys due and unpaid for the support of the child at the time it reaches the age of 18 years, dies, marries, or becomes self-supporting, shall be a continuing obligation of the party or parties bound by the order of the court to pay the same, until finally and completely paid under all the provisions of law applicable to the order.” (Emphasis supplied.)

Section 66J, as noted, deals with paternity cases — with the support of children born out of wedlock. It does not, therefore, directly control the situation before us. But it certainly represents a legislative determination that the use of contempt proceedings to enforce payment of arrearages existing after majority or emancipation is not against public policy. Indeed, such method of enforcement is consistent with and in furtherance of the public policy. It would make no sense at all to conclude that the public policy favors enforcement where the child is “illegitimate” but not where he or she is born “in wedlock.”

For all of these reasons, we conclude that the court was not without jurisdiction to enforce payment of the child support arrearage through its power to cite and punish for contempt.

(2) Laches

The question here is whether the court properly exercised the jurisdiction and authority that we have just concluded it possessed.

The equity order sought to be enforced was entered in November, 1971. The first attempt to enforce it was in February, 1973, but that proceeding was postponed because appellant was at sea. Nothing further was done for over four years, until a second show cause order was issued in March, 1977.

Notwithstanding that the obligation of child support is a duty, rather than merely a debt, the right to collect it may become barred by the doctrine of laches. Eckard v. Gardner, 255 Md. 171 (1969); Weaver v. Garrett, 13 Md.App. 283, 287 (1971).

Laches, of course, is an equitable defense; its application is not precise and automatic. In judging whether it applies in any given case — and particularly in a case where it might serve to bar the enforcement of a duty recognized by the organic law of the State — we must ever be mindful of what laches is. It was defined by the Court of Appeals in Demuth v. Old Town Bank, 85 Md. 315 (1897), this way:

“Strictly speaking, and using the term as it is understood in the law, laches is such neglect or omission to assert a right as, taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a Court of Equity.” (Emphasis in the original.)

See also Hopper v. Brodie, 134 Md. 290 (1919); McInnes v. McInnes, 163 Md. 303 (1932).

It is thus not solely the lapse of time that is involved, but, equally important, the prejudice that results therefrom to the. adverse party. In Marshall v. Marshall, 164 Md. 107 (1933), for example, the lack of prejudice precluded the application of laches to bar an attempt to collect an arrearage in spousal and child support accruing over a 26-year period. The Court noted, at page 114:

“It is contended that the appellant has lost by laches her right to enforce the decree under which she claims. The absence of the defendant from the state, and his inability to make the payments, during most of the period since they were discontinued, sufficiently account for the delay in the enforcement of the decree, and, since it finally adjudicated the defendant’s liability, he could not be prejudiced in reference to it by the subsequent lapse of time.”

In Kalben v. King, 166 Md. 632 (1934), the Court considered the application of laches to a long-delayed suit to collect arrearages of alimony pendente lite. The order was issued in January, 1924, but the wife did nothing to enforce it until her husband died eight years later, at which point she attempted to collect the arrearage from his estate. The Court said, at page 639-640:

“In this case we are not inclined to look with favor on the claim here made for alimony pendente lite. It never was contemplated that temporary alimony should run for eight years. Its purpose is to provide support and suit money for the wife for such time as may be reasonably necessary to carry on to a decree [in] a suit for divorce. In a pending suit a reasonable limitation would be the rule of the ecclesiastical court, which limited the period for the recovery of arrears of alimony to one year. This rule, however, could only be applied to pending suits, as a final decree carries with it the right to recover arrears for twelve years.” (Emphasis supplied.)

The Court next dealt with the question of laches in a support-enforcement context in Winkel v. Winkel, 178 Md. 489 (1940). The wife there was awarded alimony in a 1925 decree; however, because of her default in complying with another part of the decree, the alimony did not begin to accrue until 1931. The husband never made any payments under the decree. In 1933, the wife petitioned for an increase, which touched off a round of proceedings that dragged on for five years. In 1937, she filed another petition for increase. Finally, in 1939, among other things, she asked for a determination of arrearages under the 1925 decree (accounting from 1931). The lower court established the arrearage from 1931 to 1937 and reduced the alimony after 1937.

Citing Marshall v. Marshall, supra, and Kalben v. King, supra, the Court determined that any installments of alimony coming due within 12 years would not be barred by limitations. It said, at page 506-507:

“In such event, the enforcement of the collection of the moneys due might continue or be by way of scire facias, attachment, execution or by other equitable remedies if within the period of limitations, but it seems to the court that, after the expiration of one year from the time the payment of any instalment of permanent alimony fell due and remained unpaid, there should be a bar to a proceedings for contempt against the contemnorin respect of any such default in payment. In the opinion written for the court by Judge Sloan in Kalben v. King, supra, there is a somewhat similar suggestion, and its adoption, as here stated, is supported by practical considerations in the administration of justice and by the fact that alimony is founded in the necessity, and the design, for current maintenance and support of the wife and children. The practice in England affords a basis for adoption. As here stated and limited the rule is subject, however, to exceptions created by special circumstances, as absence of the husband from the jurisdiction or some other particular reasons shown. ” (Emphasis supplied.)

Winkel of course, dealt with alimony, not child support, although some of the rationale used to justify the special application of laches or court-fashioned limitations — an application that bars not the claim, or the right generally to enforce it, but only one particular method of enforcement — would seem to apply to child support as well. Child support also is “founded in the necessity ... for current maintenance and support....”

The Court of Appeals has not directly addressed the issue, either as to alimony or child support, since Winkel' although in McCabe v. McCabe, supra, 210 Md. 308, it seems that the Court acted in total derogation of what it expressed in Winkel. It is apparent from the McCabe Opinion that Mrs. McCabe was seeking to invoke the full panoply of equity powers, including punishment for contempt, to collect an arrearage composed of both spousal and child support due for far more than a year; and, as noted earlier, the Court, without mentioning Winkel, said that she was entitled to such relief.

Winkel was based in part upon Kalben, which in turn was premised upon ecclesiastical rules that applied peculiarly to alimony. At the time, of course (1940), Winkel would have been wholly inapplicable to the enforcement of child support orders, since contempt proceedings were not then available to enforce them. In light of McCabe, therefore, it is reasonable to consider the rule announced in Winkel — that contempt proceedings may not be used to enforce a support arrearage more than a year past due — at the very least, as not applying to child support orders.

Quite apart from McCabe, there are sound policy reasons for not extending the rather rigid and seemingly automatic termination of the contempt power. Extension would be wholly inconsistent with the legislative policy expressed in and flowing from art. 16, § 66J, supra. Moreover, it could, and often would, serve to penalize the child for the inaction of his parent. If applicable in child support cases, the Winkel doctrine would bar contempt proceedings even while the child is still dependent; the child may find himself without an effective remedy for reasons entirely beyond his control. That, indeed, is the critical distinction: it is one thing to penalize a person for sitting too long on his own rights; it is quite another to penalize him because someone else sat on those rights.

The better approach, it seems to us, is to look at laches and the contempt remedy in a more flexible way. Recalling that laches involves both the lapse of time and the consequential existence of prejudice, and remembering further that contempt is not a mandatory remedy, but a discretionary one, the equity courts should not be bound by rigid rules in applying either the defense or the remedy. Rather, what the court must do, assuming that the right itself is not barred, is to determine in each case whether the circumstances warrant the invocation of the court’s ultimate power.

Upon this basis, we have no difficulty in upholding the court’s threatened use of contempt in this case. There was sufficient evidence to establish that appellant has been deliberately and systematically evading his lawful responsibilities, that the possible sanction of contempt may be the only way of enforcing his obligation, and that he is well able to comply with the extremely generous (to him) payment schedule fashioned by the court. Contempt proceedings are not barred by laches or by the rule announced in Winkel.

(3) Other Issues

Appellant raises five other issues in this appeal which have no merit and may be answered summarily.

(i) He claims that the evidence was insufficient to support the determination of net arrearage of $8,482.74, but we conclude that the evidence was sufficient. The court interpreted the 1971 decree as requiring child support of $450 a year for each of the two children, which, in light of the 1970 Criminal Court order, was entirely reasonable. Upon that premise, the master, and the court, started with the amount of arrearage calculated by the probation department as of the date of the decree ($6,656.64), added the amounts coming due (and remaining unpaid) since then until the children were respectively emancipated, and applied the $450 credit as to Herman. That left the net arrearage of $8,482.74.

(ii) . Appellant complains that Supreme Bench Rule 571 D was violated when the court re-referred the matter to the master after he had requested a court hearing. Appellant failed to present this complaint in his exceptions to the master’s report, however, or otherwise at the hearing in court thereon, and we shall therefore not consider it in this appeal. Maryland Rule 1085.

(iii) He argues that, because the 1971 decree did not break down the $1,150 annual support into spousal and child support, it was not certain and definite in its terms; and therefore he cannot be held in contempt for violating it. The decree very clearly told appellant he was to pay $1,150. He failed to do so. He failed to pay even a part of the $1,150. Appellant had ample notice of what his obligation was.

(iv) Appellant complains next about the determination that the Department of Social Services was entitled to $7,729.64 of the amount found due. His complaint is that the action was commenced after the children were of age, and that the Department was not a party to the action. We have already answered the first point. The answer to the second is that the Department is but a subrogee or assignee of appellee’s rights. It need not be a party to the action. Appellant’s obligation is to appellee, who was, of course, a party.

(v) Finally, appellant complains that he was not granted a postponement in the hearing on his exceptions to the master’s report. The exceptions were filed on August 30, 1977, and were heard on December 20, 1978. We find no abuse of discretion in declining appellant’s invitation for further delay.

Order affirmed; appellant to pay the costs.

      . There were throe older children born to the parties as well, but they are not involved in this proceeding.

      . It is not clear whether the court realized that it would take 28 years for appellant to amortize the arrearage at that rate.

      . It is important to note that the decree was prepared by an equity master based upon testimony taken by him. The transcript of that testimony shows that the master was aware of the Criminal Court order, and the breakdown as between Mrs. Green and the two children that it contained. Indeed, a copy of the earlier order was made an exhibit in the equity case and, we assume, was forwarded to the judge along with the master’s file and report.

      . There was some evidence at that point that appellee had been receiving public assistance for a period of time, and that, as a result, the Department of Social Services may, by subrogation, have been entitled to some part of what was primarily owed to appellee.

      . See Fox v. Fox, 371 N.E.2d 1254 (Ill.App. 1978); Corbridge v. Corbridge, 102 N.E.2d 764 (Ind. 1952); Sides v. Pittman, 150 So. 211 (Miss. 1933); Lieder v. Straub, 42 N.W.2d 11 (Minn. 1950); Zieman v. Zieman, 121 N.W.2d 77 (Minn. 1963); Reynolds v. Reynolds, 137 P.2d 914 (Okla. 1943); Dawson v. Dawson, 426 P.2d 614 (Wash. 1967); Halmu v. Halmu, 19 N.W.2d 317 (Wisc. 1945); Gersten v. Gersten, 281 So.2d 607 (Fla.App. 1973).

      . See Wasson v. Wasson, 216 N.W.2d 594 (Mich. 1974); State v. Casey, 153 P.2d 700 (Ore. 1944); White v. White, 212 S.E.2d 511, aff’d 223 S.E.2d 377 (N.C. 1976); Ex Parte Hooks, 415 S.W.2d 166 (Tex. 1972); Goldberg v. Goldberg, 258 N.Y.S. 588 (1932). Cf. Allison v. Binkley, 259 S.W.2d 511 (Ark. 1953).

      . The bill of complaint did not break down the gross arrearage into alimony and child support; but it did allege that the periodic payments as to both were to commence on September 1, 1931, and that only $270 had ever been paid under the decree. It is evident that a very substantial amount of the $25,890 would have been for child support accruing during the minority of the children.

      . See 210 Md. at 310. The Court noted in its Opinion that the 1931 decree provided for the child support. The children, if ahve in 1931, had to be over 21 in 1955.

      . Until 1950, art. Ill, § 38 simply provided that “[n]o person shall be imprisoned for debt.” In construing this provision vis a vis the authority of a court of equity to enforce support orders by punishment for contempt, the Court of Appeals had drawn a distinction between alimony and child support. Alimony, it said, was considered a duty, rather than a debt, and thus could be enforced by contempt; however, child support did not enjoy that status. It was merely a debt and could not be enforced by imprisoning a defaulting obligor for contempt of court. See Bushman v. Bushman, 157 Md. 166 (1929). With an obvious intent to remove that distinction and to place child support on the same elevated plane as alimony the General Assembly proposed (Laws of Md., 1950, ch. 14), and the people ratified an amendment to § 38, adding thereto the words: “but a valid decree of a court of competent jurisdiction or agreement approved by decree of said court for the support of a wife or dependent children, or for alimony, shall not constitute a debt within the meaning of this section.”

      . In support of the last sentence, the Court cited Marshall v. Marshall, supra, 164 Md. 107. It should be noted that the Court later determined that the wife had abandoned her suit for divorce and thus was not entitled to alimony pendente lite in any event. That finding may have made some of the aforequoted language dicta. The concept, however, was made firm in Rethorst v. Rethorst, 214 Md. 1, 15 (1957), where the Court applied laches on the premise that “an award for temporary alimony more than a year in arrears is not permissible.”

      . It is not clear whether the Court was creating, by judicial fiat, a new “statute” of limitations, or applying a specialized form of laches. It would seem to be more the former, since its application was automatic and did not require a finding of prejudice.

      . Compare Bradford v. Futrell, supra, 225 Md. 512, 525, and Eckard v. Gardner, supra, 255 Md. 171.


author: Moore, J.,

text:
    KENNETH WAYNE AVERY et ux. v. SIDNEY WEITZ
    [No. 183,
    September Term, 1979.]

      Decided November 8, 1979.

    The cause was argued before Moore, Melvin and Mason, JJ.

      Wendelin I. Lipp, with whom were Arnold P. Popkin and Arnold P. Popkin, P.A. on the brief, for appellants.
    Submitted on brief by Joseph L. Gibson, Jr., and Mundy, Anderson & Gibson for appellee.
   Moore, J.,

delivered the opinion of the Court.

There are two questions to be resolved in this appeal from a judgment entered on a cognovit promissory note payable in thirty-six monthly installments:

1) Whether the applicable statute of limitations is a bar to the recovery of unpaid installments which accrued more than three years before the entry of the confessed judgment?
2) Whether the stated 10% per annum interest rate violates applicable usury laws?

The trial court determined the answer to both questions to be in the negative and allowed the confessed judgment to be enrolled in the full amount sought by the plaintiff. For the reasons which follow, we believe that the trial court was incorrect in its answer to the first question and that recovery upon twelve of the installments is barred by the applicable statute of limitations. Md. Gts. & Jud. Proc. Code Ann. § 5-101 (1974).

I

The record before us discloses that a promissory note payable to the order of Sidney Weitz, dated May 29, 1974, in the principal amount of $12,240.00, was guaranteed by Kenneth and Barbara Avery, appellants herein. Monthly payments of $340.00 were to commence on September 1,1974 and run “until paid in full” — approximately thirty-six months. Except for the first installment of $340.00, no payment was made on the note. Mr. Weitz, the holder of the instrument, did not opt to accelerate the payment of the remaining installments as he was entitled to do under the terms of the note. Instead, on September 27, 1978, he filed a declaration in the Circuit Court for Prince George’s County, along with the note, an affidavit and a line directing the clerk to confess a judgment against the Averys and in favor of himself for the full value of the note plus interest, costs, and attorney’s fees.

The Averys promptly moved to vacate the judgment by confession. After some additional pleading during which the various amounts at issue were corrected, the trial court denied the Averys’ motion to vacate and ordered that the confessed judgment stand, as corrected. The Averys have appealed that order, raising the two issues set out above.

II

According to the Averys, the trial court erred when it allowed Mr. Weitz to recover those installments which accrued more than three years prior to the entry of the confessed judgment on September 27, 1978. They cite Williams v. Taylor, 99 Md. 306; 57 A. 641 (1904) for the proposition that the statute of limitations begins to run on each individual installment as it becomes due under a note providing for the periodic payment of a debt. This common law rule is the firmly entrenched law in Maryland. See: United States v. Myers, 308 F.Supp. 859 (D.Md. 1970); Kleiman v. Kolker, 189 Md. 647, 57 A.2d 297 (1948); Santini v. Fritkin, 240 Md. 542, 214 A.2d 578 (1965). If the rule applies to this case, recovery would be barred upon the installments which fell due during the period of September 1, 1974 through September 1, 1975.

Mr. Weitz seeks to avoid the statute of limitations by arguing that the cognovit clause in this promissory note operated as a waiver of the common law rule and authorized entry of the confessed judgment “on or after maturity.” It is not surprising that he has failed to cite any support for this proposition because the vast weight of authority holds that a cognovit clause does not operate as a waiver of the statute of limitations. Parsons v. Lurie, 400 Ill. 498, 81 N.E.2d 182 (1948); Williams v. Wilborne, 170 Tenn. 289, 95 S.W.2d 41 (1936). See: Annot, 21 A.L.R. 774 (1922). We believe that the views expressed in those opinions are sound and that a cognovit clause in a promissory note, standing alone, does not waive the statute of limitations as to installments coming due during the life of the note.

This cannot be the end of our inquiry, however, for the adoption of the Uniform Commercial Code followed Williams v. Taylor, supra, 99 Md. 306, 57 A. 641 (1904), and the other Maryland cases, cited above, touching upon this problem. Md.Com.Law Code Ann. § 3-122(1) (1975) provides in pertinent part: “A cause of action against a maker or an acceptor accrues ... [i]n the case of a time instrument on the day after maturity....” Nowhere is there any provision in the Code for the accrual of a cause of action which is specifically applicable to a promissory note payable in periodic installments. The naked language of § 3-122(1) would seem to anticipate only one day of maturity per “instrument,” and thereby delay the running of the statute of limitations until the entire instrument matures. If this were to be the import of that section, then a holder of an installment note without an acceleration provision would be required to wait, despite a default, until the entire note matured before any recovery could be had because the cause of action would not accrue until the day after maturity.

We do not think that UCC 3-122(1) was designed to supplant the established common law rule in such wholesale fashion. The Code provides that “the principles of law and equity, including the law merchant ... shall supplement its [the UCC’s] provisions....” Md.Com.Law Code Ann. § 1-103 (1975). In deciding this question, the Oklahoma Supreme Court came to the conclusion “that the statute of limitations begins to run against each installment on the day following its maturity” despite the language of UCC § 3-122(1). Oklahoma Brick Corp. v. McCall, 497 P.2d 215, 217 (Okla. 1972). We agree and therefore hold that the common law rule of Williams v. Taylor, supra, 99 Md. 306, 57 A. 641 (1904) supplements the provisions of Md.Com.Law Code Ann. § 3-122 (1975). See also Toomey v. Cammack, 345 A.2d 453, 455 n.5 (1975), appeal after remand, 379 A.2d 700 (D.C. 1977).

In light of the foregoing, the trial court erred when it allowed Mr. Weitz to recover the unpaid installments and interest which fell due prior to September 27,1975. This error mandates reversal of the judgment and recalculation by the trial court of the proper amounts recoverable by the appellee, Mr. Weitz.

Ill

The Averys also argue that the note’s stated rate of interest, 10% per annum on the unpaid balance, violates the Maryland Usury Statute. Md.Com.Law Code Ann. § 12-102 (1975). They ask us to declare their entire debt void, or, in the alternative, they ask that Mr. Weitz be denied recovery of the excessive interest over 6% and be fined $500.00, said penalty to be forfeited to the Averys pursuant to Md. Com. Law Code Ann. § 12-114 (a) (ii) (1975).

On May 29, 1974, the date on which this promissory note was signed, the Commercial Law article of the Maryland Code had yet to be enacted. Instead, this transaction must be judged by the law that then pertained, namely, Md. Code Ann., art. 49 (1972). It is our view that this promissory note charged a legal rate of interest under Md. Code Ann.-, art. 49 § 5 (1972), which presently exists, although in greatly amended form, in Md. Com. Law Code Ann. § 12-103(c) (Cum. Supp. 1979). Both statutes permit an annual interest rate of 12% for certain installment loans unsecured by real property or certain securities. The relevant section in effect when the instant note was signed provided, in pertinent part:

“Interest may be charged on loans not secured by a mortgage or deed of trust on real property or on loans not fully secured by negotiable stocks, bonds or bank deposits where the borrower is required to repay the indebtedness in equal or substantially equal monthly, or other periodic, installments, at a rate not in excess of twelve percent (12%) per annum simple interest on the unpaid balance of the loan under an agreement in writing between the lender and the borrower.”

1968 Md. Laws, ch. 453 § 1, previously codified in Md. Code Ann., art. 49 § 5(a) (1972). See Commissioner of Small Loans v. First National Bank of Maryland, 268 Md. 305, 307, 300 A.2d 685, 687 (1973).

It is apparent that the instant promissory note qualifies under this section. The note is unsecured and payable in equal monthly installments. The interest rate does not exceed twelve percent per annum simple interest on the unpaid balance, and the agreement is in writing. The Averys’ allegations of usury are without merit.

In light of the foregoing discussion, we find it unnecessary to consider the Averys’ argument that the note represented a personal loan rather than a corporate obligation. Under Md. Code Ann., art. 49 § 5 (1972), as then in effect, the identity of the obligor, corporate or individual, is immaterial.

Judgment vacated; cause remanded for entry of a revised judgment in accordance with this opinion; costs to be paid by appellee.

      . The September 1, 1974 installment was paid; therefore, only twelve installments would actually be barred by the statute of limitations: October 1, 1974 through September 1, 1975.

      . The potential usury jproblem stems from the makers’ signatures on the face of the note. By rubber stamp, the following appears on the first line reserved for a maker’s signature. ‘Buck’s Auto Body, Inc. T/A Autocraft.” Below that is the signature of “Kenneth Wayne Avery” without designation of any representative capacity. On the reverse of the note Mr. and Mrs. Avery signed as guarantors.
      The Averys contended that the declaration was upon their personal obligation, not a corporate indebtedness, and that the interest rate was usurious as to them. We have no occasion here to consider whether Mr. Avery’s failure to indicate the capacity in which he signed, as principal or agent, was sufficient to justify the defense of usury. See, however, Md. Com. Law Code Ann. § 3-403(2) (1975) and official comment 3, which would appear to make Mr. Avery personally obligated on the note as a co-maker “[ejxcept as otherwise established between the immediate parties....”


author: Liss, J.,

text:
    METROPOLITAN MORTGAGE FUND, INC. v. GEORGE BASILIKO et ux.
    [No. 185,
    September Term, 1979.]

      Decided November 8, 1979.

    The cause was argued before Moore, Lowe and Liss, JJ.

      Robert A. Wallace and Harry E. Taylor, Jr., for appellant.

      Leonard C. Collins for appellees.
   Liss, J.,

delivered the opinion of the Court.

In November of 1972, Metropolitan Mortgage Fund, Inc., appellant (hereinafter, Metropolitan), made loans to a corporation, Crown Oil & Wax Company (hereinafter, Crown) in the amounts of $1,494,800.00 and $912,800.00, respectively. The loans were secured by a deed of trust and two notes in the same amounts. One of the conditions of the loans was that the notes were to be personally guaranteed by the supposed principals of Crown, George Basiliko and his wife, Sophia, appellees, and John J. Gilece, Jr. and his wife, Connie. The deed of trust was subsequently foreclosed leaving a deficiency of $189,059.22 with interest from September 27, 1974. That amount was later reduced to $120,649.51 during the trial below, and at the hearing before this Court, we were advised that the deficiency was further reduced by a credit of $40,000.00 subsequent to the trial.

Gilece, an attorney and nephew by marriage to the Basilikos, was at the time the loan was negotiated serving as president of Crown. A short time after the negotiation, of the loan he severed his relationship with Crown but returned to guide the corporation through bankruptcy. On November 14, 1974, Metropolitan filed a declaration in assumpsit in the Circuit Court for Montgomery County against the Basilikos, Gilece and his wife. Metropolitan also filed a motion for summary judgment with the declaration. Gilece and his wife filed an answer to the summary judgment motion to which was attached an affidavit in which Gilece swore that the amount of $189,059.22 with interest from September 27,1974 was not due and owing to the plaintiff as claimed in Metropolitan’s suit. Listed with the affidavit were credits claimed by Gilece of approximately $129,000.00, and also included was the contention that there were genuine issues of law and fact which required a trial of the case.

The motions judge (Shure, J.) denied appellant’s motion for summary judgment on several grounds including: the determination that no notice was given as required by Maryland Rule 610 c 2; that there was no military affidavit; that the original note was not in the file and some of the signatures were illegible; that the exhibit indicating bankruptcy was not under triple seal; and that there was an affidavit in the file which indicated a dispute as to part of the claim. Appellant filed an amended motion for summary judgment in which it attempted to cure the several defects noted by the judge in its original motion. No new affidavit in opposition to the new motion was filed either by the Gileces or Basilikos. The judge denied the amended motion noting that the “original notes are now in the file but they were not filed with your motion and were apparently misplaced; the only military affidavit in the file is too remote from the standpoint of time to be considered, there was no certification under seal concerning bankruptcy; there was in the file an affidavit in opposition listing credits in the amount of $129,000.00.”

Subsequent to the denial of the motion for summary judgment, an amended plea was filed by the Basilikos in which they denied the execution of the notes. The case came on for trial on January 8, 1979. At that trial, Metropolitan introduced into evidence the deed of trust and the notes allegedly signed by the Basilikos and Gileces. Both George Basiliko and his wife, Sophia, .took the stand and testified under oath that the signatures on the notes were not their signatures and denied that they had ever executed any of the exhibits offered by Metropolitan. Other witnesses were called. However, none of them testified they had seen the notes or deed of trust signed by the Basilikos. The Basilikos further testified they never had any interest in Crown and contended they had never heard of the corporation before or after the notes were executed. A number of other documents bearing the signatures of the Basilikos were introduced by Metropolitan for purposes of comparison. Metropolitan had previously submitted known handwriting samples of the Basilikos to a handwriting expert, and although the expert was present in the courtroom, he was not called to testify. The appellees proffered the testimony of a handwriting expert whom they had employed, but the trial judge ruled that testimony would not be necessary. Gilece was called as a witness by the appellant. He testified that it was his understanding that George Basiliko was the sole stockholder of Crown and that the business was operated by George and his brother Gus, who died of a heart attack a week and a half before trial.

On cross examination, Gilece admitted that he had neither seen Basiliko sign the notes nor had he obtained them directly from him. Instead, he delivered the documents to Gus Basiliko to get them signed, and thereafter Gus brought them back to him. Additionally, Gilece testified: that his understanding that George Basiliko “ran the show” and was sole stockholder was based on Gus’ statement to him; that he later found out that Gus Basiliko represented himself to be George in connection with Crown; that he never saw George at the various meetings in connection with Crown; and that Gus “ran a lot of things and blamed a lot of them on George.” Gilece also admitted to the Judge: that most of the discussions concerning the loan or corporation were with Gus Basiliko; that he never had any discussion with George until he found that there might be a problem with payment on the notes (at the end of 1974 and into 1975); and that when Gus signed George’s name they looked similar (especially the way they both signed their identical last name).

At the conclusion of the trial, the trial judge (Cave, J.) found that Metropolitan had failed to meet its burden of proof in its claim against the Basilikos, dismissed the suit against the Basilikos, and entered a judgment against the Gileces in the amount of $120,649.51. No appeal has been filed as to the latter judgment, and Metropolitan has only appealed the action of the trial court’s dismissing Metropolitan’s claim against the Basilikos.

The issues raised by appellant are stated as follows:

I. Whether the court below erred when it denied the plaintiffs motion for summary judgment?

II. Whether the court erred in ruling that the denial of the genuineness of the signatures by George and Sophia Basiliko, without more evidence produced by the defendant, were sufficient to rebut the presumption given the plaintiff that the signatures were genuine?

III. Whether the court erred in giving judgment to the appellees, George and Sophia Basiliko, when it did not make a finding of fact that the signatures were invalid?

I.

Appellant complains bitterly that the trial court erred in denying its motion for summary judgment. Summary judgment is properly granted under Rule 610 “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact, and that the moving party is entitled to a judgment as a matter of law.” Dietz v. Moore, 277 Md. 1, 4, 351 A.2d 428 (1976). “The function of a summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not there is an issue of fact to be tried and if there is none, to cause judgment to be rendered accordingly.” Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 7, 327 A.2d 502 (1974).

The Court of Appeals in Guerassio v. American Bankers Corp., 236 Md. 500, 204 A.2d 568 (1964) detailed how issues of fact were to be raised under the summary judgment rule when it stated:

Appellee’s pleadings and affidavits set out prima facie the elements necessary to entitle it to a summary judgment as a matter of law. Thereupon, appellants were required either to discredit appellee’s averments as untrue or to specify evidence which would give rise to a triable issue of material fact. Appellants’ pleadings and affidavits do not discredit appellee’s averments as untrue. The only issue, therefore, is whether appellants have specified some opposing evidence which would raise a triable issue of material fact. Such evidence must be indicated to the court in the form of an affidavit or deposition in support of the answer to the motion stating a fact or facts which would negative the appellee’s right to a summary judgment. Maryland Rule 610 a 3; Molesworth v. Schmidt, 196 Md. 15, 20, 75 A.2d 100. [236 Md. at 503.]

It is clear from the record that the appellees in their response to appellant’s motion for summary judgment did not file an answer or affidavit which would negative appellant’s right to a summary judgment. However, the trial judge below concluded that the appellant had not made out a case for summary judgment because of a number of defects in the exhibits and affidavits filed in support of appellant’s motion. On the basis of this determination, the trial judge directed that the case proceed to trial on the merits. It is obvious from that point appellees raised two disputed issues, i.e., the genuineness of their signatures on the notes and the amount due under the deficiency procedure.

We have been referred to no case in this jurisdiction or elsewhere where an appellate court has undertaken to backtrack in proceedings tried on its merits and to render a decision on the basis of a motion for summary judgment improperly denied. The aggrieved litigant has ample protection against such an error, if it occurs, by way of judgment on the merits or by a directed verdict or the granting of a motion to dismiss.

The only case even remotely analogous to appellant’s position is Hurt v. Stillman & Dolan, Inc., 35 Md. App. 644, 371 A.2d 1137 (1977). There the appellees obtained a summary judgment on the basis of exhibits and affidavits in support of their claims against several former employees. The appellant filed a general statement denying any indebtedness to the appellees but failed to file any specific facts or documents to support the denial. On the basis of the law as stated by the Court of Appeals in Wyand v. Patterson Agency, Inc., 266 Md. 456, 295 A.2d 773 (1972), the trial judge granted a summary judgment. Within the specified thirty-day period prior to enrollment of the judgment, the appellee filed a motion to strike the judgment and with that motion filed affidavits which on their face indicated the existence of disputed facts between the parties. The trial judge denied the motion to strike the judgment, and on appeal this Court followed the law as stated in Brewer v. Mele, 267 Md. 437, 298 A.2d 156 (1972) where it was said:

In reviewing the granting of the summary judgment itself, we are concerned with whether the trial judge was legally correct. In reviewing the denial of a motion to strike a summary judgment, on the other hand, we are concerned only with whether the trial judge abused his discretion. Clarke Baridon v. Union Co., 218 Md. 480, 147 A.2d 221 (1958). These are distinct types of decision. The critical question for the trial court vis-a-vis the Leard summary judgment was whether there existed a genuine dispute as to a material fact and, if not, what the ruling of law should be upon those undisputed facts.
The critical question for the trial court vis-a-vis the Mele motion [to vacate the summary judgment] was whether the appellant had shown a reasonable indication of a meritorious defense to the motion or other equitable circumstances that would justify striking the judgment — that is, whether the court entertained a reasonable doubt that justice had been done in the earlier granting of the summary judgment. [267 Md. at 441.]

We conclude that the trial judge did not err in denying appellant’s motion for summary judgment.

II. and III.

We shall consider the last two issues raised by the appellant together because the facts and law involved in their determination are inextricably intertwined.

Appellant relies on Maryland Code (1975) Commercial Law Article, Section 3-307 to sustain its contention that the trial court erred in refusing to grant it a judgment against the Basilikos. That section provides:

(1) Unless specifically denied in the pleadings each signature on an instrument is admitted. When the effectiveness of a signature is put in issue
(a) The burden of establishing it is on the party claiming under the signature; but
(b) The signature is presumed to be genuine or authorized....
(2) When signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.

Appellees did raise the issue of the genuineness of their signatures. The official comment to Section 3-307 states that “the burden is on the party claiming under the signature, but he is aided by the presumption that it is genuine----” “Presumption” is defined in the Commercial Law Article, Section 1-201 (31) as meaning “that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its own existence.” See Wolfe v. Madison National Bank, 30 Md. App. 525, 352 A.2d 914 (1976).

The effect and purpose of the presumption is found in the comment to that section. The comment indicates that until some evidence is introduced that would support a finding that the signature is forged or unauthorized, the plaintiff is not required to prove that such signature is authentic. The comment states:

The presumption rests upon the fact that in ordinary experience forged or unauthorized signatures are very uncommon, and normally any evidence is within the control of the defendant or more accessible to him. He is therefore required to make some sufficient showing of the grounds for his denial before the plaintiff is put to his proof. His evidence need not be sufficient to require a directed verdict in his favor, but it must be enough to support his denial by permitting a finding in his favor. Until he introduces such evidence the presumption requires a finding for the plaintiff. Once such evidence is introduced the burden of establishing the signature by a preponderance of the total evidence is on the plaintiff.

In a case almost exactly on point, the Rhode Island Supreme Court had before it a claim by a lender against a debtor and debtor’s wife and daughter to recover on notes purportedly bearing the signatures of all three defendants. After a jury had returned a verdict for the lender against all defendants, the trial judge granted the daughter’s motion for a new trial and the lender appealed. In Esposito v. Fascione, 299 A.2d 165 (1973), the lender testified that he had loaned the father $12,000.00 and that one of the conditions of the loan was that he told the father that he would not make the loan unless the father, mother and daughter signed the note. The lender admitted that only the father signed the note in his presence. At trial, the mother, father and daughter denied that the daughter ever signed the note. The daughter furnished a copy of her handwriting for the trial judge to compare with the signature on the note. In affirming the action of the trial judge in granting the new trial, the Rhode Island Supreme Court said:

The denial by all defendants that the signature on the note was that of Christine, along with her assertion that she was without knowledge of the transaction, and the sample of her signature as defendants’ Exhibit B, constitute evidence sufficient to rebut the presumption that the signature was genuine or authorized. The plaintiff clearly failed to meet the burden of proof placed upon him on this issue, and the trial justice, in our opinion, was on sound ground in concluding that that burden was on plaintiff in the circumstances of this case. Again, concluding that the trial justice did not overlook or misconceive any material evidence, there was no error in his action in granting defendant Christine’s motion for a new trial. [Id. at 168.]

To the same effect is Wolfe v. Madison National Bank, supra, a case which also concerned itself with the genuineness of a signature. There in a jury trial the trial judge ruled that a less than unequivocal denial of genuineness by a purported signer was sufficient to overcome the Section 3-307 presumption and to raise a factual issue for the jury to determine.

In the case sub judice, the denial under oath by the Basilikos that they signed the notes and the denial that they were in any way involved in the business on whose behalf the notes were given coupled with the damaging testimony of Gilece as to the circumstances surrounding the execution of the notes, indicated that the presumption of validity was clearly overcome and a factual jury issue as to the authenticity of the signatures was raised.

We find no merit in the appellant’s complaint that the trial judge erred in not making a finding of fact that the signatures were in fact invalid. The trial judge sitting as a jury said that “the court specifically does not make a finding that the signatures are not, in fact, those of the Basilikos,” but elsewhere in his opinion stated, “the defendants, having overcome the presumption that the signatures are genuine, and the plaintiff having failed to meet its burden by a preponderance of the evidence, the defendants are entitled to a judgment in their favor.” The situation, here, is similar to that in which an issue is submitted to a jury and the jury is unable to reach a decision as to the truth of the issue. This obviously is the traditional case in which the trier of fact has reached a state of evidential equipoise and the defendant is entitled to a verdict because the plaintiff has failed to meet his burden of proof. Under these circumstances, the verdict of the trial judge is not only not clearly erroneous but eminently correct.

Judgment affirmed.

Costs to be paid by appellant.


author: Weant, J.,

text:
    RUTH WALLS v. HOWARD COUNTY ASSOCIATION FOR RETARDED CITIZENS, INC. et al.
    [No. 198,
    September Term, 1979.]

      Decided November 9, 1979.

    The cause was argued before Lowe, Liss and Weant, JJ.

      Gerald A. Zimlin for appellant.

      Joseph B. Harris for appellees.
   Weant, J.,

delivered the opinion of the Court.

On February 14, 1977, the appellant, Ruth Walls, filed a claim for benefits against her employer and its insurer with the Workmen’s Compensation Commission. The appellant claimed that she had sustained an injury to her left knee, which arose out of and in the course of her employment for the Howard County Association for Retarded Citizens, Inc., the appellee, on February 10,1975. A hearing was held before the Commission on July 19, 1977, and by its Order dated August 15, 1977, the Commission found that the claim was barred by the applicable statute of limitations and therefore disallowed it. On August 23, 1977, an appeal from the Commission’s decision was filed in the Superior Court of Baltimore City. The appeal was tried without a jury on January 18-19, 1979, and the Order of the Workmen’s Compensation Commission was affirmed. It is from the superior court’s decision that this appeal has been taken.

On appeal we are faced with one question: whether the appellant’s claim for benefits was barred by the running of the two year statute of limitations contained in Maryland Code, Art. 101, § 39(a). Section 39(a) provides in pertinent part:

“(a) Accidental injury; report of physician; failure to file application as bar. — When an employee is entitled to benefits under this article, he shall file with the Commission his application and the report of his physician, provided he was attended by a physician of his own selection, within sixty days after the date of his accidental injury, for which compensation is claimed, and failure to do so, unless excused by the Commission, either on the ground that the insurance carrier or the employer has not been prejudiced thereby, or for some other sufficient reason, shall be a bar to any claim under this article; provided, however, that failure of an employee to file a claim for compensation within two years from the date of the accident shall constitute a complete bar to any claim under this article.”

The appellant contends that although she failed to file a claim within two years from the date of the accident, her claim is nonetheless timely under § 39(a). She argues that the appellee’s failure to file a report of the accident causing disability pursuant to § 38(b)-(c) tolls the running of the two year statute of limitations. Section 38(b)-(c) provides in pertinent part:

“(b) Report of accident by employer. — Whenever an accident causing disability for a period of more than three days following the happening of such accident occurs to any employee, it shall be the duty of the employer within ten (10) days after the receipt of notice of such accident} oral or written, to report such accident and injury resulting therefrom to the Commission. Such report shall state (1) the time, cause and nature of the accident and injuries, and the probable duration of the injury resulting therefrom; (2) whether the accident arose out of and in the course of the injured person’s employment; (3) any other matters and rules and regulations as the Commission may prescribe.
(c) Effect of employer’s failure to file report after ha ving been given notice. — Where the employer has been given notice, or the employer, or his designated representative in the place where the injury occurred, has knowledge of any injury or death of an employee, and the employer fails, neglects or refuses to file a report thereof, as required by the provisions of subsection (b) of this section, the limitations prescribed by this article shall not begin to run against the claimant or any person entitled to compensation until such report shall have been furnished as required by subsection (b) of this section.” (Footnote added, emphasis added).

The record before us shows that the accident which caused the appellant’s injury occurred on February 10, 1975. She immediately reported the accident to her supervisor thereby complying with § 38(a), which provides in pertinent part:

“(a) Notice. — Notice, in writing or otherwise, of any injury for which compensation is payable under this article shall be given to the employer within ten days after the accident, ...”

Thereafter the appellant was absent from work on the following dates: February 25-26, 1975; May 19-21, 26, 28-30, 1975; June 9-10,1975; August 7-8,15,1975; she attributed this lost time to the injury sustained on February 10,1975 and so notified the employer. As stated above the appellant filed a claim for benefits against the appellee with the Workmen’s Compensation Commission on February 14, 1977. The appellee then filed its employer’s report on April 18, 1977.

In finding that the appellee’s filing of the employer’s report on April 18, 1977 did not toll the two year statute of limitations contained in § 39(a), the trial court stated:

“Article 101, Section 39(a), requires an employee to file a compensation claim within two years from the date of the accident and the failure to do so is a complete bar to the claim. However, Section 38(c) states that limitations shall not begin to run until the employer files the report of the accident required by sub-section (b) of Section 38....
Sub-section (b) has several requisites. First, the employee must notify the employer of the accident. Sub-section (a) of Section 38 says that this notice must be given by the employee to the employer within ten days of the accident. Second, the employee must be disabled for at least four days.[] Third, the employer must report the accident to the Commission within ten days of receiving notice of the accident from the employee. To be able to satisfy all of these requirements, the employee must be disabled for four days prior to the end of the ten day period after the employee notified the employer of the accident. If construed otherwise, then the employer would not be able to comply with the statutory requirement that it filed \sic\ a report with the Commission within ten days of being notified of the accident by the employee. If the claimant’s contention is correct, then the employer would not be required to file the report to [s/e] the Commission until ten days after May 28, 1975, which was the fourth day of the claimant’s disability. But that period was almost four months after the claimant notified the employer of the accident. Such a construction would totally negate the statutory requirement that the employer’s report be filed within ten days of the employee reporting the accident, which was February 20, 1975. The only interpretation that satisfies the entire language of sub-section (b) is that the employer must report the accident to the Commission only where the employee is disabled for at least four days prior to ten days after the employee reports the accident to the employer. If the claimant’s contention is carried to its logical conclusion and if a claimant’s fourth day of disability does not arise until one year after the accident, then the statute of limitations would be extended to three years and ten days instead of only two years. That clearly is not the intention of the legislature. Since the claimant was only disabled for two days prior to February 20, 1975, the employer was not required to file the sub-section (b) report. Therefore the two year statute of limitation did not stop running from the date of the accident.” (Footnote added).

We disagree with the trial court’s interpretation of the statutory provisions in question. In holding that “the employer must report the accident to the Commission only where the employee is disabled for at least four days prior to ten days after the employee reports the accident to the employer,” (emphasis added), the trial court misconstrued the underlying purpose of requiring an employer to file a report of an accident. Section 38(b) states in pertinent part:

“Such report shall state (1) the time, cause and nature of the accident and injuries, and the probable duration of the injury resulting therefrom; (2) whether the accident arose out of and in the course of the injured person’s employment; (3) any other matters and rules and regulations as the Commission may prescribe-.”

It is clear that the purpose of this provision is to provide the Commission with any and all information relating to accidents for which claims for benefits may be made. Accordingly, we see no logic in a rule which would require such a report only where an employee is disabled for more than three days within ten days of notifying his or her employer of an accident and yet not require the same report if disability occurs after this ten day period has elapsed. To draw such a distinction is absurd because it works to deprive the Commission of information which clearly is considered to be important.

On appeal both the appellant and the appellee cite Douglas v. American Oil Co., 235 Md. 4, 200 A.2d 57 (1964) as supportive of their respective contentions. Douglas, like the instant case, raised the issue of whether a claim was barred by limitations; furthermore, the Court of Appeals was asked to interpret the same statutory provisions at issue in the instant case. In Douglas, the Court adopted the holding of Shiflett v. Bethlehem Steel Co., Baltimore County Circuit Court, filed February 11, 1963, recorded in the Daily Record of March 4,1963. In Shiflett, the circuit court “reasoned that the legislature must have intended that the provisions of section 38(c) were to toll the statute when, and only when the employer had violated a duty imposed by section 38(b). [T]hat section requires the employer to file a report only when the accident caused disability for a period of more than three days following the accident.” 235 Md. at 8, 200 A.2d at 59. This in turn eliminated the burden of reporting every accidental injury. We cannot, however, interpret Douglas as impliedly eliminating the duty of reporting accidental injuries where three days’ loss from work occurs after the ten day period has elapsed. Accordingly, we hold that the appellee’s failure to file the required employer’s report until April 18, 1977 tolled the two year statute of limitations contained in § 39(a); as a result, the appellant’s filing of her claim on February 14, 1977 was timely. We therefore reverse the judgment of the Superior Court of Baltimore City and remand to that court with direction to reverse the “Order” of the Workmen’s Compensation Commission and remand for a new hearing on the merits.

In passing, we are cognizant that our holding in the instant case raises several questions. Our interpretation of the provisions at issue can be read as imposing the following duties: Section 38(a) requires the employee who has suffered a compensable injury to notify his or her employer of the accident giving rise to such within ten days of its occurrence. Section 38(b) requires that upon receiving notice that an employee has been disabled for more than three days following the happening of the accident, the employer has ten days to file a report with the Commission. Therefore, the provisions appear to mandate two separate notices: notice of the initial accident and notice of more than three days’ disability. If interpreted otherwise we are faced with either of two unfavorable results. Either, the employer is forced to file a report each time an employee notifies it that an accident has occurred, a result that was clearly rejected in Douglas; or the employer is required to file a report only where an employee is disabled for more than three days within ten days of giving notice of the accident, a result which we have rejected because it draws an absurd distinction, one which we do not believe the legislature intended. State v. Fabritz, 276 Md. 416, 348 A.2d 275 (1975), cert. denied, 425 U.S. 942 (1976).

Unfortunately, the following questions remain unanswered. If disability of more than three days occurs within the ten days of the employee’s having given notice of the initial accident, is notice of the accident sufficient to place the employer on notice of the disability? If disability of more than three days occurs after ten days has elapsed, what constitutes notice of disability? Furthermore, if the employee has the burden of giving notice to the employer, how long does the employee have to give such notice? Finally, how is more than three days disability to be calculated? This question was impliedly raised in the instant case. The lower court found that the appellant’s third and fourth days of disability did not occur until May 26 and May 28, 1975, respectively. On the other hand, using what we believe is the same method of calculation, i.e., total days missed since the date of the accident, our calculations indicate that the third and fourth days of disability occurred on May 19 and May 20, 1975, respectively. This is not to say, however, that the statute does not contemplate that more than three consecutive days must be missed before the disability referred to in § 38(b) is said to have occurred.

As we have stated repeatedly, it is not our function to legislate; we therefore believe that these unresolved questions are best left to the legislature to answer.

Judgment of the Superior Court of Baltimore City reversed, case remanded to that court with direction to reverse the “order" of the Workmen’s Compensation Commission and remand for anew hearing.

Costs to be paid by appellees.

      . For reasons which will be clarified, infra, we interpret the phrase such accidents mean an accident which gives rise to disability for a period of more than three days.

      . The trial court stated that “the employee must be disabled for at least four days.” We note, however, that the language of § 38(b) speaks in terms of a “disability for a period of more than three days ....”

      . That the report is considered to be important is buttressed by the language of § 38(d) which provides:
      “(d) Penalty. — Any employer who shall fail to report any accident withm the time prescribed in subsection (b) of this section shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than fifty dollars ($50.00).”

      . It should be noted that although §§ 38-39 have been amended since Douglas, the amendments have not altered those portions of §§ 38-39 now at issue.