author: Moore, J.,

text:
    COMPTROLLER OF THE TREASURY v. MARYLAND NATIONAL BANK
    [No. 308,
    September Term, 1979.]

      Decided December 7, 1979.

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

      PaulS. Sugar, Assistant Attorney General, with whom was Stephen H. Sachs, Attorney General, on the brief, for appellant.

      GeoffreyS. Mitchell, with whom were Christopher R. West and Semmes, Bowen & Semmes on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This dispute is another chapter in the conflict between State and federal power that began in the early years of the Republic. It originated when the appellant, Comptroller of the Treasury (Comptroller), levied a retail sales tax on rental payments under electronic equipment leases entered into by the appellee, Maryland National Bank (taxpayer), prior to September 1, 1969. Specifically, the parties’ dispute turns upon the construction of the words “contract of purchase” found in a “temporary” federal statute dealing with the immunity from State taxation previously enjoyed by national banks. Act of December 24,1969, Pub. L. No. 91-156, 83 Stat. 434 (current version at 12 U.S.C. § 548 (1976)). The statutory language which has generated the instant litigation is § 5(c), found in § 1 of the Act:

“No sales tax or use tax complementary thereto shall be imposed pursuant to this paragraph 5 upon purchases, sales, and use within the taxing jurisdiction of tangible personal property which is the subject matter of a written contract of purchase entered into by a national bank prior to September 1, 1969.” (Emphasis added.)

[hereinafter referred to as § 5(c)].

It is the Comptroller’s position that federal law must control the interpretation to be given this provision, and that by applying settled principles of statutory construction, payments for the rental of tangible personal property by national banks are taxable by the State because they do not involve “written contracts of purchase.” The taxpayer argues that State law must guide the application of the statute, that under Maryland law “contract of purchase” includes a lease, and thus, the taxation of the rental payments involved herein is barred by § 5(c). Md. Code Ann., art. 81, § 324(d) (1975). See also COMAR 03.06.01.73.

I. The Facts

The facts are undisputed and are summarized in a Stipulation of Facts received into evidence by the Maryland Tax Court. Between June 1,1961 and September 1,1969, the taxpayer entered into written lease agreements with Burroughs Corporation and the National Cash Register Company for computers, data and document processors, and bookkeeping systems. The Comptroller, believing that the Act of December 24,1969, to which we have adverted, permitted the State to begin taxing those rental payments falling due after the date of the Act, assessed the taxpayer for the 4% retail sales tax. Md. Code Ann., art. 81, § 324 et seq. (1975). The Retail Sales Tax Division claimed a total tax due of $119,193.80.

The taxpayer filed an application for a revision of the assessment with the Comptroller’s office; this application was denied on July 3,1972. Subsequently, the taxpayer requested and was given a formal hearing before a Hearing Officer appointed by the Comptroller. On November 18, 1974, the Hearing Officer held the lease transaction to be taxable. Following that decision, the taxpayer took an appeal to the Maryland Tax Court which found in its favor holding that the “leases are exempt from taxation..pursuant to § 5(c). The Comptroller appealed to the Baltimore City Court. The Honorable Martin J. Greenfeld affirmed the decision of the Maryland Tax Court, and the Comptroller has appealed that adverse ruling to this Court. We, too, shall affirm.

II. National Banks’ Immunity from State Taxation

On April 10,1816, Congress created the Bank of the United States, the first national bank. Act of April 10, 1816, 3 Stat. 266. One year later, the General Assembly of Maryland passed an Act which imposed a tax on the Maryland operations of the Bank of the United States. 1817 Md. Laws, ch. 156. In 1819, the Supreme Court, speaking through Chief Justice Marshall, upheld the constitutionality of the Act creating the Bank of the United States, and ruled also that the States could not impose taxes upon “the operation of an instrument employed by the government of the Union...” M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819). Thus was created the doctrine of immunity from State taxation of federal instrumentalities.

During the Civil War, the need to stabilize currency and provide national uniformity in banking led Congress to pass the 1863 Currency Act. Act of February 25, 1863, ch. 58, 12 Stat. 665. The Act did not permit any State taxation of national banks. The following year, however, Congress delineated four permitted methods of taxation of national banks by the States. Act of June 3,1864, ch. 106, § 41,13 Stat. 111. That Act, together with subsequent amendments in 1868, 1923, and 1926, marked “the outer limit within which States can tax national banks.” First Agricultural National Bank of Berkshire County v. State Tax Commission, 392 U.S. 339, 345 (1968). As codified in 12 U.S.C. § 548 (1964), the statute was construed in First Agricultural Bank to exclude the imposition of sales and use taxes on national banks. Congress, responding to the outcry by State taxing authorities following First Agricultural Bank, passed the Act of December 24,1969, supra, Pub. L. No. 91-156, 83 Stat. 434, which had two important components. First, a “temporary amendment” to § 548 allowed certain additional State taxes to be imposed on national banks during an interim period ending on January 1, 1972 (later extended to January 1,1973 by Act of December 22, 1971, Pub. L. No. 92-213, 85 Stat. 775); Section 5(c), quoted above, is part of that amendment. Second, after the interim period, § 548 was superseded by a permanent § 548 which provided that “a national bank shall be treated as a bank organized and existing under the laws of the State____” 12 U.S.C. § 548 (1976). This provision effected a total elimination of the immunity from State taxation which national banks had previously enjoyed. We are here concerned only with the interpretation of § 5(c) of the superseded § 548 pertaining to sales or use taxes.

III. The Applicable Law: State or Federal

Both lower courts held that State law controlled the interpretation to be given the phrase “written contract of purchase.” In his brief, the Comptroller argues that:

“The Supreme Court has stated plainly that federal law [,] not state law [,] should be used to interpret whether, within the meaning of Public Law No. 91-156, a state tax law is applicable. Thus, the word “purchase” as used in Section 5(c) should be analyzed according to federal law and the meaning of Public Law No. 91-156.”

We find it unnecessary to address this issue. In our view, the application of either State or federal law to § 5(c) results in immunity from State taxation for the lease transactions involved herein.

A. State Law

If State law does control the scope of the interpretation to be given to the words “contract of purchase,” then the leases involved herein are clearly immune from the Maryland tax for the period here in dispute. Even the Comptroller does not dispute this finding of the Baltimore City Court and the Maryland Tax Court in his appeal.

The Maryland Retail Sales Tax Act in effect at the time defined “sale” to include the “rental, lease, or license to use ... by a vendor to a purchaser.” Md. Code Ann., art. 81, § 324(d) (1975). In addition, the Maryland Use Tax in effect at the time defined “purchase” to include a “lease, rental or grant of a license to use ..., store or consume the tangible personal property.” Md. Code Ann., art. 81, § 372(f)(2) (1975). See also COMAR 03.06.01.73(A).

There can be no doubt that a “contract of purchase” under the applicable Maryland statutes includes the taxpayer’s lease of tangible personal property. Applying Maryland’s definition of “contract of purchase,” to § 5(c) results in immunity for the taxpayer from the Maryland Sales and Use Taxes for the lease payments made prior to January 1, 1973, the date on which the immunity was finally and fully abrogated. 12 U.S.C. § 548 (1976).'

B. Federal Law

In construing § 5(c) as a matter of federal law, the Comptroller essentially urges that we isolate the words “contract of purchase” from the remainder of the statute and interpret them under a strict definition to include only a transaction “where title and possession is transferred, i.e., a traditional sale, and not... a lease whep only possession is transferred.” This argument ignores a basic rule of statutory construction that the statute is to be read as a whole:

“In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”

United States v. Heirs of Boisdoré, 49 U.S. (8 How.) 113, 122 (1849), quoted in Philbrook v. Glodgett, 421 U.S. 707, 713 (1975). Of course, the paramount concern in construing a statute is to give effect to the intent of the legislature. Id. It is also true that superficial “plain meaning” does not preclude a resort to other useful and viable tools of statutory construction. Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 10 (1976).

We begin with the naked language of § 5(c):

“No sales tax or use tax complementary thereto shall be imposed pursuant to this paragraph 5 upon purchases, sales, and use within the taxing jurisdiction of tangible personal property which is the subject matter of a written contract of purchase entered into by a national bank prior to September 1, 1969.” (Emphasis added.)

The statute purports to bar any “sales tax or use tax complementary thereto . . . upon purchases, sales, and use. . . .” But, there is also the additional requirement that the transaction exempted from sales or use taxation be a product of a “written contract of purchase entered into ... prior to September 1, 1969.” Some confusion results from this language. In the same section the statute applies only to “purchases, sales, and use” that are the subject of a “contract of purchase.” Either the latter term was intended to restrict the scope of § 5(c) as the Comptroller urges, or the term is merely descriptive of those written contracts subject to State sales and use taxes, as the taxpayer urges. In construing § 5(c) and particularly the meaning to be given to the words “contract of purchase,” we recall the admonition given by Chief Justice Marshall in M'Culloch:

“Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense — in that sense which common usage justifies.”

M'Culloch, 17 U.S. (4 Wheat.) at 414. The statute under consideration lacks “plain meaning.” In order properly to interpret the language of § 5(c) and the underlying congressional intent, it is necessary for us to turn to the other available tools of statutory construction and to consider the purposes and policy of the 1969 Act as evidenced in the relevant legislative materials.

As we have earlier indicated, the pertinent legislative history discloses that § 5(c) and the Act of which it forms a part were passed in the aftermath of the Supreme Court’s decision in First Agricultural Bank, supra, 392 U.S. 339. In our review of the legislative history, we have noted that the witnesses’ testimony, the comments of the various legislators, and the reports accompanying the Act indicate that the primary objective was to equalize the tax treatment of national and state banks. Congress realized, of course, that it could not immediately repeal the immunity of national banks from State taxation which existed in 1969. Some States had referenced their tax laws to the then existing statute, 12 U.S.C. § 548 (1964), and an immediate repeal of immunity could create havoc in those States. See, e.g., Mo. Rev. Stat. § 148.030 (1969). In addition, other States taxed banking organizations separately from other corporate entities, and a repeal of immunity might well have resulted in “double taxation” for banks in such States. See, e.g., State Taxation of National Banks: Hearings on S. 2065, S. 2906, and H.R. 7491 Before the Sen. Comm. on Banking and Currency, 91st Cong., 1st Sess. 54 (1969) (statement of Mr. Frank Wille). To avoid this result, and also to enable the national banks to adjust to the new order, the Congressional conferees agreed on a temporary provision which permitted additional State taxation of national banks, but delayed the complete elimination of immunity until January 1,1972 (later extended to January 1,1973 by Act of December 22,1971, supra, Pub. L. No. 92-213,85 Stat. 775). See Conf. Rep. No. 91-728on H.R. 7491, 91st Cong., 1st Sess., reprinted in [1969] U. S. Code Cong. & Ad. News 1601.

The language here in dispute received scant comment during the legislative process. Indeed, the focus of the hearings was on taxation of intangible personal property and the taxation by one State of a national bank with its principal office in another State. In the Report of the Senate Committee on Banking and Currency there is this sole reference to § 5(c): S. Rep. No. 91-530, 91st Cong., 1st Sess. 5, reprinted in [1969] U. S. Code Cong. & Ad. News 1594, 1597. Other than to provide a restatement of the statutory language, the report does little to indicate the congressional intent in enacting § 5(c). On the other hand, we find nothing to suggest that Congress intended § 5(c) to differentiate between sales and rentals in the application of immunity from State sales and use taxes.

“The proposed new paragraph 5(c) prohibits the imposition, under paragraph 5, of sales and use taxes on tangible personal property which is the subject matter of written purchase contracts entered into prior to September 1, 1969.”

In our view, § 5(c) was a “grandfather” provision designed to avoid unexpected sales and use taxes on a national bank on all purchases, sales, and use of tangible personal property by a bank where a written contract covering such transaction was entered into prior to September 1, 1969. This interpretation is in accord with the expressed intent of Congress to equalize the tax burdens of state and national banks in each State as of January 1,1973. It is also in accord with a decision in an identical case where a State questioned the extension of immunity from sales or use taxation to a written lease contract. Lake County National Bank of Painesville v. Kosydar, 36 Ohio St.2d 189, 305 N.E.2d 799 (1973). There the Supreme Court of Ohio stated:

“[T]here is no reason to believe that Congress meant the extension to apply only to one type of transaction subject to state sales and use taxes but not to another type of transaction equally subject to such taxes. In either case, the national banks — absent an extension of immunity — would be confronted with the imposition of unexpected taxes.”

Id. at 193, 305 N.E.2d at 802.

Under § 5(c), as construed under federal or state law, the Comptroller erroneously assessed the taxpayer for the sales and use taxes which are the subject of this appeal. We agree with the ultimate conclusions reached by both courts below, and therefore shall affirm the judgment of the Baltimore City Court.

Judgment affirmed; costs to be paid by appellant.

      . Before the 1969 Act was passed, a State was allowed to levy only four types of tax on the operations of national banks within its borders. 12 U.S.C. § 548(l)-(4) (1964). Section 1 of the 1969 Act added § 5(a) to the Code and, in relevant part, permitted a State to “impose any tax which is imposed generally on a nondiscriminatory basis ... on a national bank having its principal office within such State in the same manner and to the same extent as such tax is imposed on a bank organized and existing under the laws of such State.” Section 5(c), set out in the text, was an exception to the broad language of § 5(a) for sales and use taxes and was constructed in the nature of a grandfather provision. Subsections 1-4 and the “temporary” § 5 were superseded by the current statutory language found in 12 U.S.C. § 548 (1976).

      . It also appears to be the taxpayer’s position that the lease transactions here involved are immune from taxation under § 5(c) even applying federal law. Nowhere in its brief does the taxpayer state that an application of federal law would lead to the same result, but it does argue that “Congress’ sole intent in including this grandfather clause was to insure that States could not impose retroactive sales taxes on any transactions which were entered into by national banks prior to September 1, 1969.” (Emphasis added.)

      . Act of February 10, 1868, ch. 7, 15 Stat. 34.

      . Act of March 4, 1923, ch. 267, 42 Stat. 1499.

      . Act of March 25, 1926, ch. 88, 44 Stat. 223.

      . The various letters, resolutions, and petitions which were sent to Congress are reproduced in the pertinent legislative history. See n. 10, infra.

      . In support of this proposition, the Comptroller cites the recent case of Chase Manhattan Bank v. Finance Administration of the City of New York, 440 U.S. 447, 99 S.Ct. 1201 (1979), a per curiam opinion in which the Court applied federal law in deciding whether or not a State tax is a tax on tangible personal property. In cases involving immunity of national banks from State taxation federal law has been applied in a series of Supreme Court cases. Society for Savings in the City of Cleveland v. Bowers, 349 U.S. 143, 151 (1955); First Agricultural Bank of Berkshire County v. State Tax Commission, 392 U.S. 339, 347 (1968); Diamond National Corp. v. State Board of Equalization, 425 U.S. 268 (1976) (per curiam). See also United States v. State Board of Equalization, 450 F.Supp. 1030, 1035 (N.D. Cal. 1978).
      The instant case is unlike those cited because here the Comptroller is seeking to apply federal law in order to avoid the immunity, while the taxpayer is seeking to apply State law in order to preserve the immunity. In the cases cited, the State sought to avoid the immunity by applying State law. The Supreme Court has refused to allow State law to defeat an immunity granted by Congress and it is doubtful that the Court would permit the immunity to be denied where, as here, State law supports it.

      . The leases were the subject of written agreements entered into prior to September 1, 1969, as required by § 5(c).

      . Judge Greenfeld of the Baltimore City Court felt that the Comptroller’s interpretation of “contract of purchase” was too restrictive:
      “If read as narrowly as the Comptroller urges, then a contract of ‘sale’ would not be exempt under [§ 5(c)], while a contract of ‘purchase’ would be exempt. Under such reasoning, the inadvertent (and probably meaningless) designation of a transaction by the parties as a ‘contract of sale’ instead of a ‘contract of purchase’ would trigger a tax and disqualify the exemption.”
      Calling this distinction “overly technical,” the Comptroller states that “construing ‘purchase’ to include ‘sale’ does not alter the ordinary meaning of ‘purchase____’” The Comptroller, in seeking to distinguish between purchases and rentals, fails to explain why a distinction must not be made between purchases and sales when the statute itself refers to “purchases, sales, and use.”

      . See State Taxation of National Banks: Hearings on S.2065, S.2906, and H.R. 7491 Before the Sen. Comm. on Banking and Currency, 91st Cong., 1st Sess. (1969); H.R. Rep. No. 91-290, 91st Cong., 1st Sess. (1969); S. Rep. No.

        91-530, 91st Cong., 1st Sess., reprinted in [1969] U.S. Code Cong. & Ad. News 1594; Conf. Rep. No. 91-728 on H.R. 7491, 91st Cong., 1st Sess., reprinted in [1969] U.S. Code Cong. & Ad. News 1601.

      . It is significant, as the taxpayer correctly points out in its brief, “that on no occasion [in the available legislative materials] was any mention made of a purported distinction between contracts of sale and contracts of lease.” See n.6, supra.

      . The Comptroller argues for a uniform national standard in interpreting “contract of purchase” to exclude a lease because reliance on State law would result in differing treatment of national banks in the several States. This argument assumes that the uniform federal interpretation sought by the Comptroller would have a concomitant effect on State taxation of national banks, when, in fact, the taxation of national banks would still be dictated by the individual statutes of each State. Interstate uniformity could be achieved only by abolishing State taxation; the Act was designed to assure only intrastate uniformity between state and national banks.


source: Caselaw Access Project

author: Low®, J.,

license: Public Domain

text:
    BETTY HALE and MARY HOSSLER v. STATE OF MARYLAND
    [No. 317,
    September Term, 1979.]

      Decided December 10, 1979.

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

      Charles D. Hollman and Thomas F. Stansfield for appellants.

      Paul T. Cuzmanes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sandra A. O'Connor, State's Attorney for Baltimore County, and C.

      Eugene Schmidt, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Low®, J.,

delivered the opinion of the Court.

We will reverse the convictions of Betty Hale and Mary Hossler whom the factfinding judge of the Circuit Court for Baltimore County found guilty of failure to support a destitute parent. Md. Code, Art. 27, § 104. Although the question of the parent’s destitution as defined is highly questionable, our reversal is predicated upon a statutory prerequisite that the children charged with the duty to support must be

“possessed of or able to earn means sufficient to provide such parent... with necessary shelter, food, care and clothing, and neglects or refuses so to do,....”

Betty Hale is unemployed. Indeed, so is her husband who is, of course, not responsible for the support of Mrs. Hale’s parent. The Hales have no savings, no income producing property and own only an automobile, vintage 1971. Mrs. Hale was laid off from her part-time job and has grossed $68 per week in unemployment compensation since. This, plus Mr. Hale’s income from odd jobs is all that sustains their household which consists of children sixteen and eighteen years of age whom they support, and another child twenty-two years old who supports herself and her child.

Mary Hossler is a fifty-two year old farm housewife, with a ninth grade education and no vocational training. She has neither property, income, nor bank accounts of her own and is supported entirely by her farmer husband.

Initially offering the appellants probation before verdict, the trial judge observed that

“ ... I think technically there is a violation here. I am not going to impose a guilty verdict. I am going to enter probation on this condition: I don’t know whether you can handle this or not, I want each of these ladies to pay $20 a month commencing April 1st. That gives you a month to get yourselves adjusted for a job....” (Emphasis added).

Appellants declined the probation before verdict, and the court imposed a $500 fine which the judge suspended upon the same condition.

The trial judge appears to have overlooked that this criminal statute requires the factfinder to find beyond a reasonable doubt, not merely that the parent was destitute, but that the children were “able to earn” a sufficient income to support the parent. The trial judge’s doubt of this ability as reflected by his observation above gainsaid his having been convinced by the high standard imposed on criminal cases. For that reason we reverse.

We add that our own review of the record clearly conforms to that equivocation of appellants’ abilities to earn. Uncontradicted proofs that the Hale household is without a breadwinner and that Mrs. Hale is drawing unemployment compensation belies any inference in this case that she is “able to earn”. That Mrs. Hossler is performing a full-time job as a housewife to a farm family is a common sense observation or, if not, we will empirically observe and unhesitantly judicially notice that a farm housewife and mother of teenage daughters, is a full-time responsibility if properly performed. She should not be judicially coerced into substituting a statutorily imposed filial duty for an assumed maternal one unless the State proves that she is capable of both.

The “destitute” parent in the case is being supported substantially, if not entirely, by two other daughters and a son. From the daughters she receives $50 per month each and from the son an amount unspecified. She also receives $237 from Social Security. Any moral obligation upon appellants is not at issue here, nor is a question of contribution among those children who are providing support. The issues were whether the parent was statutorily destitute and, if so, were the noncontributing daughters “possessed of or able to earn means sufficient to provide such parent” sustenance. The evidence in this case, if anything, proved the daughters did not have the ability to contribute to their parent’s sustenance. The finding that the State had proven its case beyond a reasonable doubt is clearly erroneous. Md. Rule 1086.

Judgments reversed.

Costs to be paid by Baltimore County.


author: COUCH, J.,

text:
    IN RE: DARRIN M.
    [No. 333,
    September Term, 1979.]

      Decided December 10, 1979.

    The cause was submitted on briefs to Thompson, Couch and Weant, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Nancy Louise Cook, Assistant Public Defender, for appellant.

      Submitted by Stephen H. Sachs, Attorney General, William H. Kenety, Assistant Attorney General, Arthur A. Marshall, State’s Attorney for Prince George’s County, and Steveii Chappelle, Assistant State’s Attorney for Prince George’s County, for appellee.
   COUCH, J.,

delivered the opinion of the Court.

On March 7,1979, at a hearing in Cases Nos. JA 639-79 and 640-79 in the Circuit Court for Prince George’s County, sitting as a juvenile court, Darrin M., the appellant, a seventeen year old male who was alleged to have participated in two daytime housebreakings, was waived to the jurisdiction of the criminal court. Pursuant to Section 3-817 (g) of the Courts and Judicial Proceedings Article only a summary review was made of the waiver petitions since the court, on December 14, 1978, had waived jurisdiction of the appellant to the criminal court on similar but unrelated charges. On appeal the appellant contends that a summary review was improper because the December 14,1978 waiver of the appellant was still on appeal at that time to this Court.

Section 3-817 (g) of the Courts and Judicial Proceedings Article states:

“If the court has once waived its jurisdiction with respect to a child in accordance with this section, and that child is subsequently brought before the court on another charge of delinquency, the court may waive its jurisdiction in the subsequent proceeding after summary review.”

In granting the waivers in 639-79 and 640-79, the court noted:

“The record should reflect I have just been handed the investigative report filed for waiver of this child in JA 3671-78, and 3672-78, one was a burglary and one was larceny from a coin machine, presented to the Court back in November of 1978. As I understand, that waiver was granted by myself.”

and thereafter concluded:

“December 14 waiver was granted in 3671 and 3672-78. All right.
The Court, pursuant to 3-817 (g), will now, summarily waive in 639-79 and 640-79.”

The appellant contends that a summary review of the petitions in the instant case was improper because the prior waiver was still on appeal and therefore not final. The appellant’s point is well taken since this Court in an unreported per curiam opinion, In Re: Darrin M., No. 52, September Term, 1979, filed on October 2,1979, remanded for further proceedings because we found the December 14,1978 waiver of the appellant defective. Thus there was no effective previous waiver of juvenile jurisdiction so as to bring Sec. 3-817 (g) into play.

In our view, a review of the legislative history of Sec. 3-817, Courts and Judicial Proceedings Article of the Maryland Code, points the way to our conclusion. In 1973 the legislature amended subsection (c) of Article 26, Section 70-16 of the Code to provide that an order waiving juvenile jurisdiction was interlocutory and, of course, any appeal therefrom would have to await a conviction in the adult court. This was changed by the legislature in 1975 when it was specifically provided, in subsection (f) of Sec. 3-817, that such an order was immediately appealable. In the next subsection following, provision was made for summary review where the court had once waived its jurisdiction with respect to a child in accordance with this section, i.e., Sec. 3-817. It seems patent, therefore, that when this change is kept in mind it follows that a predicate for utilizing the summary review procedure allowed by Sec. 3-817 (g) requires that there be no appeal pending from the previous order.

While neither this Court nor the Court of Appeals has been faced with this precise issue before, we believe our conclusion is supported by Matter of Toporzycki, 14 Md. App. 298, 287 A.2d 66 (1972) and Wheeler v. State, 10 Md. App. 624, 272 A.2d 96 (1971). In Wheeler, supra, a juvenile pleaded guilty in the adult court to two robberies with a deadly weapon, after the juvenile court had previously waived its jurisdiction over him. After his adult court convictions, Wheeler appealed claiming the waiver of jurisdiction by the juvenile court was invalid. The question before the court dealt with the obligation of the adult court when it had a juvenile before it for trial after a juvenile waiver hearing had been held and jurisdiction waived. The Court stated, in part:

“In Thomas v. State, 10 Md. App. 458 (1970), we said:
‘As the law provided for a direct appeal to the Court of Appeals from an order of the juvenile court waiving jurisdiction, the only obligation of the criminal court when no appeal was taken from such order was to determine whether the waiver order was valid on its face. If so it need not look behind it.’ The new law expressly states that ‘[a]n order of waiver shall be considered a final order and terminates the jurisdiction of the court over the case.’ Art. 26, § 70-16 (c). Section 70-25 provides that an aggrieved party may appeal from a final order of the juvenile court to the Court of Special Appeals in the manner prescribed by the Maryland Rules. Thus under the new law as under the old, if a direct appeal was not taken from the order waiving jurisdiction, the only obligation of the criminal court is to determine if the waiver order is valid on its face.” [Emphasis added.]

Id. at 626. It seems clear that the Court contemplated that the adult court obligation would be different if a direct appeal had been taken.

In Toporzycki, supra, the Court held that since the previous waiver was conducted under Art. 26, Sec. 54, which was repealed by the new Section 70-16 (now Sec. 3-817, Cts. &Jud. Proc. Art.) and required no consideration of the factors listed in Sec. 70-16, the Section 54 waiver could not serve as the basis of a waiver after summary review within the contemplation of Sec. 70-16 (c). It seems implicit from both of these cases that (1) a previous waiver must be an effective waiver, and (2) the previous waiver must be a final one from which no direct appeal has been taken.

Accordingly, we hold that a summary review for purposes of waiving jurisdiction under Sec. 3-817 (g), Cts. &Jud. Proc. Art., may not be made where the previous waiver order is pending appeal. Furthermore, we hold that this procedure may not be used prior to the expiration of time for appeal from the first order and, if the subsequent hearing is after the allowed appeal time and the record before the court at the second hearing is silent with regard to whether the first order has been appealed, it is incumbent on the trial judge to make an appropriate inquiry.

Order reversed.

Case remanded for further proceedings consistent with this opinion.

Costs are not reallocated as part of the judgment of this Court pursuant to Maryland Rule 1082f.

      . But see In Re: Ricky B., No. 102, Sept. Term, 1979, filed October 17, 1979, wherein we held that Courts Art., Sec. 3-817 (g), cannot be utilized when a “reverse waiver” has been ordered by the “adult court”.

      . Inasmuch as no issue as to the constitutionality of this provision was raised below or here, we do not reach it.


author: Weant, J.,

text:
    BEVERLY P. ANTONELLI v. JOHN O. ANTONELLI
    [No. 334,
    September Term, 1979.]

      Decided December 10, 1979.

    The cause was argued before Thompson, Couch and Weant, JJ.

      John T. Bell and Robert W Thompson, with whom were Bell, Cornelius & Shore on the brief, for appellant.

      Herbert P. Suskind for appellee.
   Weant, J.,

delivered the opinion of the Court.

The basis for this argle-bargle was laid with the filing of a decree of divorce a vinculo matrimonii on July 26, 1977, in the Circuit Court for Montgomery County, Equity No. 56325 (Antonelli v. Antonelli), which provided, among other things, “that the custody of the two minor children of the parties, Dominic Frank Antonelli, III, born September 26, 1964 and John Patrick Antonelli, bom April 11,1966, shall be awarded to the plaintiff [Beverly P. Antonelli] with reasonable rights of visitation reserved to the defendant [John O. Antonelli], pending further order of the Court.” Thereafter, the defendant sought to have that decree modified through a change of custody of the two minor children; following this, he filed a petition for contempt on January 4, 1979, for the alleged failure of the plaintiff to grant him reasonable visitation with said children. This latter action resulted in the issuance on January 4,1979, of a rule to show cause requiring the plaintiff to appear in court to show cause “[w]hy the Plaintiff [appellant herein] should not be found in contempt of the Order of Court dated July 25, 1977 for failing to allow reasonable rights of visitation to the Defendant [appellee herein].” A hearing was held and the plaintiff, by Order dated February 13, 1979, was “found to be in constructive civil contempt” of the Circuit Court for Montgomery County “for her willful failure to afford reasonable visitation to the Defendant, as required by the previous order of this Court;” it was further ordered

that the imposition of any sanction for this contempt is hereby suspended upon the condition that the Plaintiff afford reasonable rights of visitation to the Defendant at all times in the future, to specifically include the following rights of visitation until further order of this Court:
From 6:00 p.m. February 23,1979 until 8:00 p.m. February 25, 1979, and
From 10:00 a.m. Saturday until 8:00 p.m. Sunday on the weekends beginning March 10, 1979 and March 31, 1979, and every second weekend thereafter....

This same order provided that the Master should consider the question of definite specific rights of visitation in light of the difficulties which the parties had experienced in respect to visitation.

Beverly P. Antonelli appealed this finding to this Court, alleging that the Order of the Montgomery County Court of February 13, 1979, was improper in that it failed to contain a provision by which she could purge herself; she further presented the following questions:

1. Is the July 25, 1977 decree, requiring only “reasonable rights of visitation” too uncertain, unspecific or indefinite to provide a basis for holding the Appellant in contempt?
2. Has the Appellant denied visitation within the terms of the July 25, 1977 decree?
3. Should the Appellant be cited for contempt of the July 25, 1977 decree?
4. Has the Appellee met his burden of proof?
5. Did the hearing judge exceed his powers by conditioning the imposition of contempt sanctions on the Appellant’s noncompliance with a new set of visitation requirements conceived in the Hearing to Show Cause?

Considering first the alleged failure of the trial court to provide a “purge” provision, we quote the pertinent part of the court’s Order of February 13, 1979, which reads: “the imposition of any sanction for this contempt is hereby suspended upon the condition that the Plaintiff afford reasonable visitation rights to the Defendant —” In a civil contempt such as this, the contemnor must be afforded a chance to purge herself of her guilt, this type of punishment being remedial and, abrogable by compliance. In the instant case the court provided for the suspension of the “sanction” but left standing the finding of “constructive civil contempt.” In effect, this puts the plaintiff on probation without allowing for any means by which she can rid herself of the guilt. The contempt citation must therefore be reversed. State v. Roll and Scholl, 267 Md. 714, 728, 298 A.2d 867, 876 (1973); Herd v. State, 37 Md. App. 362, 377 A.2d 574 (1977).

Since our conclusion above mandates reversal, it is not necessary for us to further consider the questions presented by Mrs. Antonelli. Nonetheless, we feel compelled to address her contention that the requirement of “reasonable rights of visitation” is too vague and uncertain to provide a basis for a contempt finding. We have been cited to no cases directly on point nor have we found any. Mrs. Antonelli argues that for a decree to be a basis for a contempt finding it must be “definite, certain and specific in its terms” and “sufficiently specific to give a defendant a fair guide as to what is expected of him.” This argument certainly follows the dictates of our courts. Harford County Education Ass’n v. Board of Education, 281 Md. 574, 587, 380 A.2d 1041, 1049 (1977); Mattingly v. Houston, 252 Md. 590, 593, 250 A.2d 633, 635 (1969).

While the granting of visitation rights under a dictate that they be “reasonable” may not be as preferable as more specific directions as to date and time, we cannot hold that such a decree is so indefinite, uncertain, and unspecific as to be beyond the court’s contempt proceedings. It is a term that is consistently used by the courts of this State and, in fact, is a term that was used in the separation agreement entered into between the parties to this case; said agreement was executed on May 18, 1976, and filed herein as plaintiff’s exhibit number 3. Black’s Law Dictionary 1138 (5th ed. 1979) defines “reasonable” as follows:

Fair, proper, just, moderate, suitable under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to the dictates of reason. Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable. [Citation omitted].

Whether or not the visitation afforded is reasonable depends upon the circumstances involved. We are not prepared to say that this is a situation in which a court cannot exercise its discretion. Obviously, no visitation at all would not be reasonable under ordinary circumstances. The reasonableness must be predicated on the particular conditions involved in each case, e.g., age of child, location, dates and times available.

In this case the difficulty with visitation apparently started after a change of custody was sought by Mr. Antonelli, which motion was mailed to Mrs. Antonelli’s attorney on December 12, 1978. Prior to that time, Mr. Antonelli had enjoyed visitation rights every other weekend and sometimes on Thursday evenings. Thereafter, things did not go as smoothly. The court below found that Mrs. Antonelli unreasonably deprived Mr. Antonelli of visitation rights and that this deprivation “was not within the fair range of her exercise as to discretion as a custodial parent and was, indeed, motivated by either spite or if not in retaliation for his filing of a custody change, at least to obtain a strategic advantage through depriving him of fair access and visitation with the children during the pendency of this.” The court found that, while Mrs. Antonelli denied Mr. Antonelli the right to take the children skiing on thé‘ pretext that their grades were not good, she, in turn, took them on a ski trip herself. During this time also there was the problem of Mr. Antonelli being able to see the children on Christmas of 1978. While Mrs. Antonelli indicates that Mr. Antonelli was allowed to visit on that date, Mr. Antonelli testified, and apparently the court believed, that he was invited to spend Christmas at Mrs. Antonelli’s house with her boyfriend, his children and their children. These findings do not appear to be motivated by the “best interest of the children.” Under this situation it does not seem reasonable or logical to say that the result reached by the Chancellor was clearly erroneous and unsupported by the record.

The other matter which appears to have rankled Mrs. Antonelli most severely is that, according to her, the hearing judge exceeded his powers by conditioning the suspension of contempt sanctions upon her compliance with a new set of visitation requirements. We think that the short answer to this is found in the court’s statement that

“[w]ell, what I’m trying to say to you is that I do not think that under these pleadings — well, at least there may be a problem with my proceeding to pass an order which defines on an interim basis at least what reasonable rights of visitation shall constitute unless it is coupled with what I clearly can make under the circumstances, and that is a finding of contempt. These are people who don’t impress me as needing a record of contempt — .[]

Clearly the court was merely attempting to define what it considered to be “reasonable rights of visitation.” It found no reason why it could not define this term, as long as it also found contempt, which it in fact did under the circumstances presented. It would appear that the schedule set forth in the court’s Order of February 18, 1979 was similar to the schedule followed by the parties prior to Mrs. Antonelli’s change of heart in December. We also gather that this was to have been a method by which the plaintiff could purge herself, although not specifically provided for in the court’s order. We cannot find that it was the intention of the court to set up “a new set of visitation requirements.” Hence, we do not believe that the court exceeded its powers in this regard.

For the reasons stated above, we reverse the order of the Circuit Court for Montgomery County and remand the case now before us for further proceedings in conformity with this opinion.

Reversed and remanded.

Costs to abide results.

      . We think this to be dispositive of questions 2 and 3.

      . We do not think that this latter statement reflects at all on the court’s certainty of the contempt proof. It appears to reflect only on the status of the parties. Hence, we find no merit in question 4.


author: Gilbert, C. J.,

text:
    WESTON INTERNATIONAL CORPORATION t/a Weston Leasing Company v. WOODLAWN SUPERMARKETS, INC. t/a Food-A-Rama
    [No. 365,
    September Term, 1979.]

      Decided December 11, 1979.

    The cause was argued before Gilbert, C. J., and Moylan and Melvin, JJ.

      Ronald P. Seres for appellant.

      Gary I. Strausberg, with whom were Richard V. Falcon and Melnicove, Kaufman & Weiner on' the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Although the origin of contractual relationships is somewhat obscure, no one can seriously doubt that in today’s world a contract is to commerce what breath is to life — fundamental, without whose existence neither could long survive.

The instant appeal, arising from the Superior Court of Baltimore City (Hammerman, J.), involves an agreement that the appellant, Weston International Corporation, trading as Weston Leasing Company (Weston), views as a lease while the appellee, Woodlawn Supermarkets, Inc., trading as Food-A-Rama (Woodlawn), perceives it to be a contract of sale.

A jury decided that the “agreement” was in fact a contract of sale, and awarded compensatory damages to Woodlawn of $7,718.82 and punitive damages in the amount of $25,000.

After post-trial motions for a judgment non obstante veredicto or new trial were denied by the trial judge, Weston appealed to this Court. Here it raises hexad issues, three of which question evidentiary rulings by the trial judge, two involve the matter of punitive damages and one is directed at the judge’s refusal to grant a requested jury instruction. Woodlawn has moved to dismiss the appeal on the ground that Weston has failed to follow the Maryland Rules of Procedure.

We shall deal with the latter motion inasmuch as it is dispositive of the appeal.

Woodlawn observes that Weston has made a number of errors with respect to its, Weston’s, brief and record extract. Not all the alleged errors are of such magnitude as to require dismissal of Weston’s appeal, but some do carry that sanction.

The appellee asserts, and we agree, that the appellant’s record extract is deficient in the following respects:

1. The judgment appealed from is not within the extract. Md. Rule 1028 b 1(a).
2. Appropriate means of indicating omissions in the testimony are not used. Md. Rule 1028 a.
3. References to the printed extract are not properly designated. Md. Rule 1031 a.

Violations of Rule 1028 a and b permit this Court to dismiss, as is true also with respect to Rule 1031 a. If that were all there is to the appellee’s motion to dismiss, we would be inclined to pass an appropriate order, short of dismissal, but those violations pale into insignificance when the more serious breaches of the rules relative to extracts are concerned.

Appellee’s (Plaintiff) exhibit 4, as presented into evidence clearly depicts the initials of “FS” to an interlineation on the contract of sale, or the lease, depending upon whether one is the appellant or the appellee. The initials are important because they stand for “Frank Sarro,” a sales representative of the appellant, Weston, and support the position of Woodlawn. Appellant’s reproduction of exhibit 4 in the record extract does not display these initials. Whether the omission or “cut off” of the initials was inadvertent or by design, we cannot say. Even then, we would be inclined to give the benefit of any doubt to appellant were it not for the fact that despite the appellee’s express written request that three pages of testimony, viz., 67, 84-85, be included in the extract together with the appellee-plaintiff’s declaration and the appellant’s plea thereto, the appellant either wilfully or negligently failed to place them in the extract.

As a direct result, the appellee was required to print those materials in his own appendix.

A series of cases from the Court of Appeals and this Court have consistently held that the Maryland Rules of Procedure are “precise rubrics that are to be read and followed.” Colonial Carpets v. Carpet Fair, 36 Md. App. 583, 584, 374 A.2d 419, 421 (1977); See also Robinson v. Board of County Commissioners, 262 Md. 342, 278 A.2d 71 (1971); Isen v. Phoenix Assurance Co., 259 Md. 564, 270 A.2d 476 (1970); Kemp-Pontiac-Cadillac v. S. & M. Construction Co., 33 Md. App. 516, 365 A.2d 1021 (1976); Pride Mark Realty, Inc. v. Mullins, 30 Md. App. 497, 352 A.2d 866 (1976).

It was held in Kemp-Pontiac that “if the appellee elects to supply in his record extract the material omitted by the appellant, instead of exercising the option of filing a motion to dismiss and requesting that the time for filing his brief be extended, the appellate court would not ordinarily dismiss the appeal, in the absence of prejudice to appellee ora deliberate violation of the Rule.” (Emphasis supplied.) 33 Md. App. at 524, 365 A.2d at 1026.

This, however, is not the ordinary case. The appellee specifically requested in writing that the appellant print in the record extract three pages of testimony that were favorable to the appellee, together with the declaration and plea. As we have previously stated, those requests were not honored. Md. Rule 1028 c. Under the circumstances, we conclude that the appellant’s failure to include the requested items in the extract was a deliberate violation of the Rule, for which the sanction is dismissal of the appeal.

In passing we note that if the appeal were before us on its merits we would affirm the judgment of the Superior Court of Baltimore City.

Appeal dismissed.

Costs to be paid by appellant.

      . 2 Pollock and Maitland, The History of English Law, Ch. V (2d ed. 1905).


author: Morton, J.,

text:
    RUTH LANKFORD v. MAYOR AND CITY COUNCIL OF FEDERALSBURG et al.
    [No. 372,
    September Term, 1979.]

      Decided December 11, 1979.

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

      Amos I. Meyers and John A. Schruefer, Jr., with whom was Frederick C. Malkus on the brief, for appellant.

      Nevin E. Leese for appellees.
   Morton, J.,

delivered the opinion of the Court.

This is an appeal in a workmen's compensation case from an order entered in the Circuit Court for Caroline County which affirmed the decision of the Workmen’s Compensation Commission denying appellant's claim for compensation. The case was tried before Judge K. Thomas Everngam on an agreed statement of facts which is set forth below.

On October 4,1970, Charles H. Lankford was injured in the course of his employment as a police officer for the Mayor and Council of Federalsburg, Maryland. The town’s insurance carrier Hartford Accident & Indemnity Company thereafter paid him compensation for four years temporary total disability from the date of his accident until October 4,1974. After a hearing and by an order filed July 8, 1977, the Workmen’s Compensation Commission awarded him $35 per week compensation for twenty weeks for disfigurement and further compensation at the rate of $65 per week (beginning October 5, 1974) but not to exceed $30,355 allowable under “other cases” pursuant to Section 36 (3a) and (4a) of Article 101, for 70% industrial loss of use of the body as a result of injuries to his left arm, right arm, left leg and ribs.

Thereafter Charles H. Lankford was employed as a Deputy Sheriff of Caroline County, Maryland, and died as a result of an injury received in a melee at the Federalsburg Carnival on July 29, 1977. The insurer of the County Commissioners of Caroline County, the employer of Mr. Lankford, was the State Accident Fund. In a case entitled Ruth Lankford (widow) of Charles H. Lankford (deceased) v. County Commissioners of Caroline County and State Accident Fund (Claim No. A 69-33-57), and after a hearing, Commissioner Edward A. Palamara passed an order dated August 30,1978, making an award of compensation to the widow of $45,000 in weekly payments of $98 (plus further payments after $45,000 was paid if she continued to be wholly dependent) and $1,200 toward his funeral expenses.

After another hearing, Commissioner William R. Hughes passed an order dated December 21, 1978 (Claim No. A 49-87-89) on the issue:

“Is widow, Ruth Lankford, entitled to remainder of Award to deceased claimant, Charles H. Lankford.”

Commissioner Hughes found that “the claim is abated by the compensable death” and closed the file and claim in the case by “Charles H. Lankford against Mayor & Council and Hartford Accident and Indemnity Company.” Thereupon, the Mayor & Council of Federalsburg and its insurer, Hartford Accident & Indemnity, terminated the weekly compensation benefits to Charles H. Lankford under the “other cases” award to him dated July 8, 1977.

The single issue before this Court, as it was below, is whether the Commission properly found that the original compensation awarded to Mr. Lankford was abated or terminated by his “compensable death,” thereby precluding his widow, the appellant, from receiving the remaining payments to which her husband would have been entitled but for his death.

Resolution of the issue requires a construction of Md. Code, art. 101, § 86 (4) (c), which reads:

“If any employee dies from any cause or causes not compensable under this article, the right to any compensation payable under this subsection and subsections (3) and (5), unpaid at the date of his death, shall survive to his surviving dependents as the Commission may determine, if there be such surviving dependents, and if there be none such, then to his wife and children under eighteen years of age if there was, at the time of his death, a legal obligation on the part of said employee to support his wife, and if there was no such obligation, then to his children under eighteen if any, alone. This paragraph does not apply to the provisions of § 66 of this article.”

In construing legislation we follow guidelines which have become time honored. A fundamental precept requires us to “carry out the real legislative intent and in ascertaining that intent the Court considers the language of an enactment in its natural and ordinary signification. A corollary to this rule is that if there is no ambiguity or obscurity in the language of the statute, there is usually no need to look elsewhere to ascertain the intent of the General Assembly.” (Citations omitted. Harden v. Mass Transit Adm., 277 Md. 399, 406 (1976).

With respect to workmen’s compensation legislation, we have an additional guidepost which is mandated by the provisions of the statute itself. Section 63 of art. 101 specifically provides:

“The rule that statutes in derogation of the common law are to be strictly construed shall have no application to this article; but this article shall be so interpreted and construed as to effectuate its general purpose.”

The Court of Appeals and this Court have repeatedly stated that in order to carry out. its benevolent purposes the Workmen’s Compensation Act must be liberally construed in favor of the employee and his or her dependents within the limits its provisions will permit. Bayshore Industries v. Ziats, 232 Md. 167, 173-74 (1963); W.C. & A.N. Miller Dev. Co. v. Honaker, 40 Md. App. 185, 189 (1976); Cline v. City of Baltimore, 13 Md. App. 337, 344 (1971).

Bearing these statutory construction precepts in mind, we turn to the words of § 36 (4) (c) and it becomes at once apparent that if we give them their ordinary and natural meaning, it was the purpose and intent of the legislature to award a deceased claimant’s dependents the remainder of the compensation payments to which he would have been entitled had he lived. It is evident, however, that the award to the dependents would be mandated only if the deceased claimant “dies from any cause or causes not compensable under this article____” It takes only a modicum of common sense and literacy to conclude that if, conversely, the deceased claimant dies from any cause or causes which are compensable under the article, that his dependents would not be entitled to the remainder of the unpaid payments under the original award.

In brief, it seems clear to us that the legislature intended to provide for a continuation of compensation payments due a claimant at the time of his death if, and only if, his death occurred from a non-compensable injury; and, conversely, that these payments would not survive if his death was compensable thus permitting his dependents to receive compensation payments as a result of his compensable death.

Here the record clearly shows that Mr. Lankford’s death was not from any cause or causes “not compensable under this article,” for his widow, as a result of his death, was awarded “compensation benefits at the rate of $98.00, payable weekly, beginning July 29, 1977 not to exceed the sum of $45,000.00, however, further payments shall be made to the dependent after the total amount of $45,000.00 has been paid if she continues to be wholly dependent____”

We think it abundantly clear that a sound reading of § 36 (4) (c) evinces the intent of the legislature that where an original claimant’s death results from any cause or causes which entitle his dependents to compensation payments under the Act, payments under the original award to which he would have been entitled but for his death do not survive and must be abated or terminated.

Judgment affirmed; costs to be paid by appellant.


author: Wilner, J.,

text:
    THEODORE J. SCHEVE et ux. v. ANDREW MCPHERSON et al.
    [No. 384,
    September Term, 1979.]

      Decided December 11, 1979.

      The cause was argued before Mason, Liss and Wilner, JJ.

      Paul E. Rosenberg for appellants.

      Robert E. Quinlan for appellees.
   Wilner, J.,

delivered the opinion of the Court.

Theodore and Geraldine Scheve, appellants, appeal from an Order of the Circuit Court for Prince George’s County setting aside a partial decree foreclosing the right of appellees to redeem certain property purchased by appellants at a tax sale. Before reaching the question of whether the court erred in this action, however, we must consider the sticky question of whether we have jurisdiction to entertain the appeal.

A short synopsis of the proceedings below will serve to place the issue in focus.

On June 29, 1978, appellants filed a bill of complaint to foreclose the equity of redemption in twelve parcels of land that had been purchased by them at a tax sale on May 9,1977. One of these parcels, designated in the bill as “A-4,” had belonged to appellees. Attached as an exhibit to the bill was a copy of a notice that had been sent by the Director of Finance to appellees the day of the tax sale notifying them of their right to redeem and warning them that a proceeding to foreclose that right could be brought at any time after May 10, 1978.

Copies of the bill of complaint were properly served, either directly or constructively through an order of publication, on all parties in interest. Pursuant to the requirement in Md. Annot. Code art. 81, § 106, the subpoenas warned the former owners to answer the bill of complaint or redeem the property within 61 days after the first Monday of October, 1978 (the 61st day thus being December 2, 1978). The order of publication directed those in interest to appear in court by November 22, 1978, or suffer thereafter a final decree foreclosing all right of redemption. One of the persons served in connection with Parcel A-4 was Robert E. Quinlan, Esq., who received a summons on behalf of Chauncey A. Rice (a former, but since deceased, owner of the property) on July 19, 1978.

Although a number of people interested in other parcels included in the bill of complaint timely and successfully redeemed their properties, no action was taken with respect to Parcel A-4 until November 30,1978 — two days before the 61-day deadline. On that day, Mr. Quinlan called the attorney for appellants, Paul E. Rosenberg, Esq., advising that his clients desired to redeem Parcel A-4, and requesting a statement of the costs involved. See Md. Annot. Code art. 81, § 111. The next day — December 1, 1978 — Mr. Rosenberg confirmed the conversation by letter to Mr. Quinlan. He advised Quinlan of his costs ($257.92), enclosed a petition to redeem the property, and said:

“The taxes and interest must be paid to the Treasurer for Prince George’s County. If you will send me the Petition along with my costs and expenses, I will join in the Petition fixing the costs and sign my receipt. Thereafter I will return it to you so that you may have the taxes paid and receipted. The Judge will then sign the Order dismissing your part of the suit and redeeming the property.”

Quinlan did not respond to this letter, or take any action to implement the redemption. On December 14, 1978, Rosenberg filed with the court an affidavit of service and attempted service, and on December 20, the court signed a partial final decree foreclosing all rights of redemption in four of the parcels (including A-4) and vesting absolute and indefeasible title to them in appellants.

On January 19, 1979 — 29 days after the decree was filed with the clerk — appellees filed a petition to set it aside, alleging that (1) they had tendered to the court the taxes due, (2) they had tendered to Rosenberg his costs of $257.92, (3) the tender was made within 30 days of the decree, and (4) ‘substantial injustice would be done to the Defendants unless the Petition For Redemption filed heretofore were granted by the Court.” It is important to note that the Petition does not allege either fraud or lack of jurisdiction in entering the decree; it is also important to note that the court file fails to show any petition for redemption having been filed by appellees or anyone on their behalf.

Notwithstanding these omissions, the court, apparently ex parte, issued an order on January 19, staying the December 20 decree with respect to Parcel A-4, and ordering that the petition be set in for hearing. Such a hearing was held on March 12, 1979, by which time appellees had yet to apply to the court to fix the amount necessary for redemption as required by Md. Annot. Code art. 81, § 94. The basic facts recounted above were brought out at the hearing. Appellees’ chief claim was that they relied on Rosenberg’s letter as allowing them an unspecified amount of time to complete the redemption. The court accepted that argument, concluding from the bench:

“I think Mr. Rosenberg did everything more than reasonably, and from what I have heard there is nothing here done by him that the Court could criticize in any way whatsoever. Counsel for the defendant has made that clear to me that he is not complaining. Mr. Rosenberg didn’t do anything he shouldn’t have done and did something he should have done.
“What troubles me is that the offer to permit redemption is an open-ended offer. It doesn’t indicate that you must redeem on or before a certain day. Maybe you can read into this offer a reasonable time. However, I think that the defendant may have been lulled into a situation where they felt they could come up with these funds just about any time unless further notified by Mr. Rosenberg.
“It’s too bad that there was no limit in this letter that, in other words, from Rosenberg to Quinlan, indicating, ‘Yes, you may redeem up until the time I am going to submit a final decree, which will be some time in January.’
“Accordingly, the Court will conclude from the facts, as I have found them to be, that there was, in fact, a constructive fraud. Accordingly, pursuant to Article 81, Section 113, the Court will sign an order, when presented, setting aside this decree as to Lots 35 and 36, Block B, subdivision of Fairmont Heights, Maryland, upon the payment of all costs as itemized in Mr. Rosenberg’s letter of December the 1st, 1978, and in addition thereto a furthér attorney’s fee in the amount of $200.” (Emphasis supplied.)

On March 16, 1979, the court made manifest this decision by signing an order setting aside the final partial decree of December 20,1978 (as to Parcel A-4), and requiring appellees to pay costs of $257.92 and an additional counsel fee of $200. On March 23,1979, this appeal was taken from the March 16 order. The record before us does not reveal that any further action was taken by the court, or by anyone else, with respect to the redemption of the property in question.

Jurisdiction

Save for the statutory exceptions enumerated in Md. Ann. Code, Courts article, § 12-303, and two others established by the Court of Appeals, this Court’s jurisdiction is limited to hearing appeals “from a final judgment.” Courts article, § 12-301. The initial question, then, is whether the March 16 order setting aside the December 20 decree is a “final judgment” from which an appeal may properly be taken. The test for determining the finality — Le., the appealability — of a judgment is this: a judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding. Peat & Co. v. Los Angeles Rams, 284 Md. 86, 91 (1978); United States Fire Ins. v. Schwartz, 280 Md. 518 (1977).

The decree entered on December 20, 1978, certainly met that standard. Under art. 81, §§ 112 and 113, that decree, had it remained in effect, would have finally and conclusively foreclosed appellees’ right of redemption and vested “absolute and indefeasible title” to the property in appellants. But what was the effect of the March order setting aside that decree?

Ordinarily, an order setting aside an unenrolled decree — usually issued pursuant to Maryland Rule 625 a — does not finally adjudicate anything, and is therefore not appealable. See Owen v. Freeman, 279 Md. 241, 249 (1977); Madison v. State, 205 Md. 425, 431 (1954); but compare First Federated Com. Tr. v. Comm’r, 272 Md. 329, 333, concerning the appealability of an order striking an enrolled decree. It merely returns the case to the pre-decree status where all parties are again in more or less even balance and able to prosecute or defend their respective claims. Indeed, striking or setting aside an unenrolled decree is usually the logical antithesis of finality as defined by the Court of Appeals.

But tax sale foreclosure proceedings are unique in many ways. Art. 81, § 92, states that the pre-tax sale owner may redeem the property “at any time until the right of redemption has been finally foreclosed under the provisions of this subtitle....” Section 100 repeats that right: “The right to redeem shall, nevertheless, exist and continue until finally barred by decree of the court of equity in which the foreclosure proceeding is filed....” These statutes mean what they say. Heill v. Staniewski, 265 Md. 722 (1972); Brashears v. Collison, 207 Md. 339 (1955). The purpose and effect of striking the December decree, therefore, was to reinstate appellees’ right to redeem the property, a right that had been terminated by the stricken decree. The March order clearly represented a determination by the court that appellees were entitled to redeem the property, that that right should not be foreclosed, and that, if appellees followed the statutory procedure for redemption, they would be entitled to own and possess the property to the exclusion of appellants.

Except for fixing the amount necessary for redemption pursuant to art. 81, § 94 — about which the parties tell us there is no dispute — there was nothing further for the court to do, and no further opportunity for appellants to protest or to prosecute their claim. See Cahn v. Prince George’s Homes, 38 Md. App. 280, 283 (1977), aff’d 283 Md. 76 (1978). Unlike the ordinary situation, a further affirmative decree (and therefore a further petition to do anything but establish the amount necessary for redemption) was unnecessary and indeed unaüthorized. The mere striking of the December decree, reviving a right of redemption that could then be exercised merely by paying the amounts fixed by the court, was the one and final act that adjudicated the rights of the parties and, save for appellate review, terminated the justiciable controversy among them. It therefore constituted a final and appealable order.

Constructive Fraud

The court’s finding of constructive fraud was based entirely upon its perception of Mr. Rosenberg’s actions of November 30 and December 1 as an “open-ended offer” which “lulled” appellees into thinking that they could “come up with these funds just about any time unless further notified by Mr. Rosenberg.” No other act, omission, or circumstance was mentioned by the court, or was apparent from the record, in support of its finding.

Constructive, as opposed to actual, fraud does, of course, suffice under § 118 to reopen an otherwise final decree of foreclosure. The statute itself makes this clear. See also Jannenga v. Johnson, 243 Md. 1 (1966); Arnold v. Carafides, 282 Md. 375 (1978); Brooks v. McMillan, 42 Md. App. 270 (1979). The question, in each case, is whether the act or omission complained about amounts, in law and in fact, to constructive fraud.

Most, if not all, of the cases in which such fraud has been found have involved the failure to give proper and legally required notice of the proceedings, or of some critical stage of the proceedings, to the former owner. Where that circumstance is found and as a result of it the former owner has been prejudiced in some way, the courts have set aside the foreclosure decree whether or not the failure to give the notice was deliberate. This was the case in Jannenga, Arnold, and Brooks, supra. See also Smith v. Watner, 256 Md. 400 (1970); Kilkenny v. Mongelli, 35 Md. App. 187 (1977).

In none of these cases, however, nor in any other that we have found, have the Maryland courts attempted to define in more generic terms what constitutes constructive fraud. They have said only that it need not be vicious and deliberate (Jannenga, 243 Md. at 5), and that it rests more upon presumption and less upon furtive intent (Whitehurst v. Barnett, 161 Md. 444 (1932), also Jannenga at p. 5). To the extent that it may arise from the failure to do that which ought to be done in the course of a judicial proceeding, it seems to be somewhat akin to, though clearly not synonymous with, the traditional concept of an “irregularity”; namely, “the doing or not doing of that, in the conduct of a suit at law, which, conformable with the practice of the court, ought or ought not to be done.” Berwyn Fuel & Feed Co. v. Kolb, 249 Md. 475 (1968); Calvert Fire Ins. Co. v. Reick, 39 Md. App. 620 (1978).

Perhaps the most acceptable definition of “constructive fraud” is that stated in 37 C.J.S. Fraud, § 2c (pp. 211-212):

“Constructive fraud is a breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests. Neither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud.”

See also 37 Am. Jur. 2d, Fraud and Deceit, § 4, p. 23.

A key element in this definition is the breach of a legal or equitable duty. In each instance in which the Court of Appeals or this Court has ordered or affirmed the reopening of a decree for constructive fraud the critical fact relied upon was the presence of a legal duty and the breach of it. Indeed, in Jannenga, the Court explained, 243 Md. at 5:

“A failure to provide [the required] notice or to make a good faith effort to do so may not amount to actual fraud in that one may not have been compelled by malicious motives to deceive the defendant, but it does, in any event, amount to constructive fraud since Jannenga, regardless of moral guilt or intent to deceive, failed to perform a legal duty.” (Emphasis supplied.)

Of equivalent significance is the fact that, in nearly each instance in which constructive fraud was not found, the Court noted the absence of any breach of a legal duty. See, for example, Sanchez v. James, 209 Md. 266 (1956), and the basis upon which that case was distinguished in Jannenga, 243 Md. at 6, 7; also Garris v. Dickey, 22 Md. App. 618 (1974), cert. den., 273 Md. 720 (1974). Compare Walter E. Heller & Co. v. Kocher, 262 Md. 471 (1971).

It is not by accident that constructive fraud has been so limited. Constructive fraud is nonetheless fraud, a most serious charge. It is therefore “not lightly found by the courts” (Garris v. Dickey, supra, 22 Md. App. at 630) and requires clear and convincing proof to establish. Loyola Fed. S. & L. v. Trenchcraft, 17 Md. App. 646 (1973). Even noncompliance with a legal duty need not necessarily amount to constructive fraud. Walter E. Heller & Co. v. Kocher, supra.

It is in this context that the court’s finding must be considered.

There is no charge, or suggestion, that Mr. Rosenberg failed to carry out any legal duty or responsibility in connection with the foreclosure proceeding. Indeed, as noted, the Court found as a fact that he did everything he was supposed to do and did not do anything he was not supposed to do. Mr. Quinlan, an attorney, had received the notice sent to him by Mr. Rosenberg and therefore was aware not only of the proceeding but of the deadline for responding to it. At argument on his petition to set aside the decree, Quinlan characterized his November 30 conversation with Rosenberg as follows:

“On November 30th I spoke on the telephone to Mr. Rosenberg and he said, ‘You want to redeem?’ and I said, ‘Yes.’ He said, ‘Okay, I’ll send you a letter which sets forth the costs and breakdown of my costs and a petition which you ought to file.’ And I said, ‘Fine.’ ”

The letter and enclosures followed the next day.

As the trial court observed, no particular deadline was specified for Quinlan to respond, either in the conversation or the letter; and, had Rosenberg rushed in to court the next day, as he otherwise had a right to do, an element of unfairness and inequity would certainly have been present. But he waited nearly three weeks before seeking a decree. As Mr. Rosenberg explained to the court:

“It seems to me if there was some difficulty in raising the cash in the face of the subpoena that they had an obligation to come to me and say, ‘Hey, look, I’m short, I need another day, another week,’ and twenty days went by I heard nothing and got nothing. The obligation is upon them to come forward with the cash and petition to redeem, or at least to send me something saying, ‘I’m working on it.’
“I have an obligation to my clients. The statute provides once the time runs I can proceed. And to find a constructive fraud on that means not only do I have to serve him and send him a letter, I apparently have to knock on his door and say, The time is up.’ And I don’t think the court rules require me to go that far. Under the circumstances he has not alleged sufficient reason to find a constructive fraud to set it aside.”

We agree entirely with this approach. Mr. Rosenberg was certainly under no obligation to allow any extension of time, much less to prepare the pleadings thought necessary to effectuate a redemption. He had every right to expect that if appellees truly desired to redeem at that late date, they would do so expeditiously. At best, his obligation was to wait but a reasonable time. In light of the statutory mandate (§ 112) that “[a]t the expiration of the time limited in the order of publication, and in the subpoena, the court shall pass its decree in the proceedings, in accordance with the general equity jurisdiction and practice of said court...,” of which both Rosenberg and Quinlan were presumably aware, it was inappropriate to the point of being clearly erroneous for the court to consider Rosenberg’s offer as an “open ended” one. Mr. Quinlan had no right to assume that Mr. Rosenberg would wait forever, to his clients’ detriment, while appellees made up their mind whether they desired to redeem their property. Three weeks was long enough in the absence of any intervening communication from or on behalf of appellees.

Accordingly, we believe that the court erred as a matter of law in finding that there was constructive fraud. This, then, would preclude any relief to appellees under § 113.

General Revisory Power

We then are faced with the somewhat hazardous question of determining whether the court could have granted the same relief under its general revisory power, notwithstanding the very limited discretion permitted under § 113.

In Perryman v. Suburban Dev. Corp., 33 Md. App. 589 (1976), this Court concluded that the broad (and discretionary) revisory power of a court over its judgments and decrees, provided for in Maryland Rule 625a, was not applicable in tax sale foreclosure proceedings. Pointing to the clear legislative mandate contained in art. 81, § 113, that “[n]o application shall ... be entertained to reopen any final decree rendered under the provisions of this subtitle except on the ground of lack of jurisdiction or fraud in the conduct of the proceedings to foreclose...,” we concluded that “the obvious and inevitable collision” between that statute and Rule 625a must be resolved in favor of the statute. “This conclusion,” we said, “is inescapable, as a matter of logic and of statutory construction.” See 33 Md. App. at 597.

Upon certiorari in that case, the Court of Appeals concluded that because the appellant had, by its actions, waived its right of appellate review, the appeal should have been dismissed, and we never should have considered or decided the conflict between the rule and the statute. See Suburban Dev. Corp. v. Perryman, 281 Md. 168, 169 (1977). The Court noted, however, in footnote 1, at p. 169:

“In directing dismissal of this appeal we are not to be understood as either approving or disapproving the Court of Special Appeals’ conclusion that the revisory powers granted a circuit court by Maryland Rule 625 do not extend to cases involving foreclosure of the right of redemption. However, should the question arise again its resolution should be considered in light of our ruling in Owen v. Freeman, 279 Md. 241, 367 A.2d 1245 (1977), concerning Rule 625 as it relates to Dismissal Rule 528L of the Supreme Bench of Baltimore City, which was decided subsequent to the ruling of the Court of Special Appeals in this case.”

Owen v. Freeman concerned the relationship between Rule 625a and Supreme Bench of Baltimore Rule 528L. The local rule, similar in purpose to Maryland Rule 530, provided for the dismissal of dormant actions. The apparent point of conflict was the provision in the local rule that, if a case was once reinstated and then not disposed of during the ensuing term, it had to be dismissed and “shall under no conditions be ordered reinstated....” Under this rule, once the court, in that circumstance, entered a judgment of non pros, there was no way of reversing that action. That, of course, appeared to be inconsistent with the general revisory power under Rule 625a.

The Court of Appeals held that its rule prevailed, and, in doing so, it gave Rule'625a a very expansive application. It said, for example, that the general revisory power “is generally subject only to the restraints imposed by rules of court” and that “no judgment is' specifically excluded from the operation of the rule, and our cases hold it applies to all final judgments.” 279 Md. at 245. The Court also noted, however, that even if the local rule was intended to carve out an exception to the general rule, “such an intent could not be effectuated. This is so because those parts of any local rule which are contrary to or inconsistent with the Maryland Rules are abrogated by the latter.” Id. at 248.

The Court of Appeals, of course, is free to give its Rules as expansive or restrictive a meaning as it feels appropriate; and, so long as any resulting conflict is with a subordinate enactment {e.g., a local rule) or one that it is free to declare subordinate {e.g., another of its Rules), the resolution of the conflict is not especially difficult. Should the rule conflict with a statute, however — an enactment of at least equal stature — different considerations prevail.

The limitation expressed in § 113 was first enacted in 1943 (Laws of Md., 1943, ch. 761). Until then, the law merely recognized the right of a former owner to redeem his property within one year of the sale by reimbursing the purchaser for his cost (plus interest), and directed that if he did so, the court that had ratified the sale could require the purchaser to execute a deed of reconveyance. See Md. Annot. Code (1939) art. 81, § 82. The 1943 law established a whole new framework and set of procedures for dealing with tax sales and redemptions — what is now §§ 92-122 — part of which (§ 90M as enacted by ch. 761) introduced the limitation now contained in § 113. That limitation was reenacted in 1968 (Laws of Md., 1968, ch. 729) when the legislature placed a one-year statute of limitations on reopening a decree for constructive fraud.

The general revisory power of a court over its judgments is of much longer standing. In Kemp v. Cook, 18 Md. 130, 137-138 (1861), the Court observed that “[t]he power of setting aside judgments upon motion, is a common law power incident to courts of record, and exercised usually under restraints imposed by their own rules, and rarely after the term has passed in which the judgment was rendered....” See also Seth v. Chamberlaine, 41 Md. 186, 194 (1874): “... [Tjhe principle is too well established to require the citation of authorities to support it, and is of every day’s application in the practice of the courts of this State, and elsewhere, that the court retains power over its own judgments and orders, in both civil and criminal cases, during the term at which they are entered or made, and will, during that time, set them aside, or change or modify them, as circumstances may require.” (Emphasis supplied.)

It is apparent from Seth, and from other similar pronouncements by the Court, that this broad inherent common law revisory power was exercisable only during the term of court at which the judgment was entered. Once that term expired, the revisory power was quite limited. This led to a most interesting situation.

Under the State Constitution, at least since 1864, the terms of the circuit courts have been set “by law.” See present Constitution, art. IY, § 21. Both the General Assembly and the circuit courts themselves have, at times, exercised that power; and the effect of their doing so has been a complete lack of uniformity among the courts in both the number and the duration of their terms. Some circuit courts have two terms a year, some have three, and some have four, the only common feature being that they all last longer than 30 days.

This lack of uniformity as to the number and duration of court terms automatically created a similar disparity with respect to the common law revisory power exercisable by the courts. So long as the common law rule prevailed, one court, having but two terms a year, would retain control over its judgments for up to six months, whereas another, having quarterly terms, would lose control in half that time. The “inherent” power was not equally shared.

It appears that the first limitations upon this common law revisory power came from the General Assembly. By public local law, in at least three cases, the legislature restricted the discretionary revisory power of the circuit courts to periods of 30 or 40 days.

The piecemeal approach ended on November 12,1947, when the Court of Appeals adopted Part Two, Ch. VI, Rule 1 of the General Rules of Practice and Procedure. Noting that the new rule superseded all inconsistent statutes and rules of court, it provided:

“Courts shall have for a period of thirty (30) days after the doing of any act or thing in any cause the same revisory power and control over such act or thing which they have had under the practice heretofore existing, or which they had under practice existing prior to the adoption of a special provision of any Public Local Law herewith superseded, during the term at which it was done, and no more, and after thirty (30) days from the doing of any such act or thing or after the expiration of the term at which it was done, whichever time is longer, courts shall have the same revisory power and control as they have had under practice heretofore existing prior to the adoption of a special provision of any Public Local Law herewith suspended, after the term at which it was done, and no more.” (Emphasis supplied.)

The apparent purpose and effect of this somewhat verbose rule was to continue the common law general revisory power of the circuit courts over their judgments, but to restrict its exercise to a period of 30 days. To that extent, the Court was clearly modifying what it had previously (and has since) regarded as an inherent power of the circuit courts, its power to do so stemming from the new Constitutional provision.

The present text of Rule 625a became effective January 1,1957, as part of the general revision of the old equity rules and general rules of practice and procedure that we now call the Maryland Rules. As the Court said in Pumphrey v. Grapes, 215 Md. 573, 575 (1958), it “merely restates in substance the rule at common law, and under the General Rules of Practice and Procedure, Part Two, VI, Rule 1.”

We have then the following:

(1) A statute (§ 113) that quite clearly states that “[n]o application shall... be entertained to reopen any final decree rendered under the provisions of this subtitle except on the ground of lack of jurisdiction or fraud in the conduct of the proceedings to foreclose...,” of which the Court said in Hardisty v. Kay, 268 Md. 202, 208 (1973): “We think the legislature has been explicit in its language and clearly expressed its intention that a final decree is conclusive and no application shall thereafter be entertained unless it falls within the exempted categories....” (Emphasis by the Court of Appeals); and of which it further said in Thomas v. Kolker, 195 Md. 470, 475 (1950), and again in Arnold v. Carafides, 282 Md. 375, 377 (1978): “... [T]he public interest in marketable titles to property purchased at tax sales outweighs considerations of individual hardship in every case, except upon a showing of lack of jurisdiction or fraud in the conduct of the foreclosure.” (Emphasis supplied.)

and

(2) A rule, Constitutionally authorized, reaffirming an inherent general revisory power that the Court has said “applies to all final judgments.” Owen v. Freeman, supra.

In Brooks v. McMillan, 42 Md. App. 270, 274 (1979), we considered the footnote in Owen as indicating “the direction [the Court of Appeals] would have us follow” and, contrary to our earlier thoughts expressed in Perryman, observed that “it appears that Rule 625a is applicable.”

We are saved, however, from having to decide that question. The General Assembly has resolved it for us. By Laws of Md., 1977, ch. 271, the Legislature codified Maryland Rule 625a (with one addition not relevant here) as Courts article, § 6-408. It thus has said, statutorily, that “[f]or a period of 30 days after the entry of a judgment, or thereafter pursuant to motion filed within that period, the court has revisory power and control over the judgment....” The inconsistency with § 113, if there is one, is now a statutory inconsistency.

In the title to ch. 271, the General Assembly declared the purpose of the Act to be that of “providing courts with revisory power over judgments within a certain period of time after the entry of the judgment and only for certain reasons thereafter.” It thus neither expressed nor implied any limit upon the exercise of this revisory power during the 30-day period.

The specific rules of statutory construction are sometimes confusing, and occasionally lead to contradictory results. For example, where two statutes, both relevant, are inconsistent, one rule provides that the more recently enacted should prevail; but another rule says that if one statute is general in its application and the other is specific, the specific one prevails. See Criminal Inj. Comp. Bd. v. Gould, 273 Md. 486, 494-495 (1975), and cases cited therein in support of both propositions. Here, of course, the earlier statute is the more specific; it would therefore give way under the first rule, but prevail under the second. But the overriding consideration in all cases, to which these specific rules are merely aids, is to carry out the legislative intent. In this regard, it is necessary to consider the presumption that when the Legislature acts in a particular area, it does so with knowledge of and regard to the prior state of the law, including relevant decisions of the Court of Appeals. See Criminal Inj. Comp. Bd. v. Gould, supra, 273 Md. at 498; Supervisor v. Southgate Harbor, 279 Md. 586, 591 (1977); Herbert v. Gray, 38 Md. 529 (1873). This would, of course, include, in this instance, the Court decisions interpreting the breadth of Maryland Rule 625a, notably Owen v. Freeman (the Opinion in which was filed just two weeks after the General Assembly began its 1977 session and about a month before the bill that became ch. 271 was introduced. See 1977 House of Delegates Journal, p. 1241).

Given the overall history of both § 113 and the broader revisory power, we have no doubt that the 1977 enactment was intended to prevail, and that the circuit courts, at least since July 1,1977, if not before, do possess the power to strike or revise any judgment or decree entered by them upon motion filed within 30 days. This includes a decree of foreclosure entered pursuant to art. 81, § 112. We therefore conclude that, while the court was erroneous in its finding of constructive fraud, it could have set aside the December decree discretionarily.

The court did not act, however, in a discretionary capacity, although it could have done so. And it is not for us to presume that, had the court not found constructive fraud, it would have set aside the decree under its general revisory power. Because such relief was requested by appellees, however, we shall remand the case back to the circuit court, without affirmance or reversal, for a further proceeding in which the court should determine whether to set aside the decree pursuant to its general revisory power provided for in Courts article, § 6-408 and Maryland Rule 625a.

Case remanded to Circuit Court for Prince George’s County pursuant to Maryland Buie 1071 without affirmance or reversal for further proceedings in accordance with this opinion; each party to pay own costs of this appeal.

      . Although the petition failed to allege when this tender was made, a subsequent memorandum of law recites that the money was tendered the same day as the petition — January 19, 1979.

      . It appears from the parties’ briefs that Quinlan sent a petition to redeem to Rosenberg along with the $257.92 in costs, expecting that Rosenberg would co-sign the petition. No petition was ever filed with the court, however, even to this day. But, as will be discussed shortly, the law does not seem to require any such petition in order to effect a redemption.

      . Denial of a motion to dismiss a criminal case on the ground of double jeopardy, and an order that exceeds the jurisdiction of the trial court. See Waters v. Smith, 277 Md. 189 (1976); Flower World of Amer., Inc. v. Whittington, 39 Md. App. 187 (1978).

      . The court’s Order of March 16, 1979, striking the decree, also set the costs at $257.92 plus an additional counsel fee of $200.

      . To conclude otherwise — to consider the order establishing the cost of redemption as the final judgment, for example — would permit a person such as appellee effectively to preclude an appeal by simply not applying for such a further order. His right to redeem would continue indefinitely, subject to some new or collateral proceeding (see Cahn v. Prince George’s Homes, supra, 38 Md. App. 280, aff’d 283 Md. 76), and yet the tax sale purchaser would be unable to test the validity of the court’s decision effectively barring him from the use, possession, and ownership of the property. By reason of this conclusion, it is not necessary for us to consider whether that Order might be appealable under Courts article, § 12-303(a) or (b)(6).

      . The 1851 Constitution, Art. IV, § 8 specified that the circuit judges shall hold a term of court at least twice in each year, or oftener if required by law. Through public local laws, the General Assembly, by 1860, had established regular terms for each of the 21 circuit courts then in existence (Garrett and Wicomico counties not then in being) and for the four courts then operating in Baltimore City. The number and length of terms differed from county to county, some having two, some having three, some having four terms each year. See 1860 Code of Public Local Laws: art. 1, § 9; art. 2, § 75; art. 3, § 42; art. 4, §§ 160,171,174,175; art. 5, § 22; art. 6, § 43; art. 7, § 7; art. 8, § 52; art. 9, § 31; art. 10, § 74; art. 11, § 40; art. 12, § 23; art. 13, § 2; art. 14, § 79; art. 15, § 30; art. 16, § 40; art. 17, § 68; art. 18, § 29; art. 19, § 36; art. 20, § 25; art. 21, § 54; art. 22, § 32. Twelve courts had two terms a year, three (including as one the four courts in Baltimore City) had three terms, and six had four terms. With respect to ten counties, these or similar local laws are still in effect. See Public Local Laws: Allegany County, § 18; Baltimore County, § 7-1; Dorchester County, § 5-1; Frederick County, § 5-9; Garrett County, § 6-1; Prince George’s County, §§ 12-1,12-2 (providing terms for the Circuit Courts of Prince George’s, Calvert, and St. Mary’s Counties). In addition, pursuant to Maryland Rule lg, the terms of the circuit courts, and the courts comprising the Supreme Bench of Baltimore, are established by local rule. Most of the circuits have provided for either two or three terms each year, but their number, length, and commencement dates still differ from county to county. See First Circuit Rule 2, Second Circuit Rule 3c, Third Circuit Rule 2, Fourth Circuit Rule 2, Fifth Circuit Rule 2, Sixth Circuit Rule 3, Seventh Circuit Rule 4, Eighth Circuit Rule 21.

      . See, for example, Laws of Md., 1886, ch. 184, limiting the general revisory power of the courts of Baltimore City to 30 days; Laws of Md., 1922, ch. 140 and 223, doing the same with respect to the Circuit Court for Harford County; Laws of Md., 1927, ch. 695, pertaining to the Circuit Court for Prince George’s County.

      . It was not until November, 1944, that the Court of Appeals was authorized to adopt general rules of practice and procedure for the circuit courts. The occasion for this was the reconstitution of the Court as a truly independent tribunal, it previously having been composed of the chief judge of each judicial circuit. See Laws of Md., 1943, ch. 772, especially § 18A, ratified by the voters in November, 1944. Prior to the adoption of § 18A, the Court’s rule-making power extended only to equity and appellate proceedings. Art. IV, § 18. The first General Rules of Practice and Procedure were adopted November 1, 1945, but they did not address the general revisory power over judgments.

      . “For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such judgment. After the expiration of such period the court shall have revisory power and control over such judgment, only in case of fraud, mistake or irregularity.”

      . We note, in passing, that whenever the Court of Appeals (or this Court) has applied § 113 as a bar to opening a decree entered under § 112, the application for relief had been filed after the expiration of 30 days and was thus not subject to the court’s general revisory power. See, for example, Oppenheimer v. Micbar Co., 192 Md. 192 (1949); James v. Zantzinger, 202 Md. 109 (1953); Brashears v. Collison, supra, 207 Md. 339; McGarvey v. Southern Corp., 218 Md. 591 (1959); Hardisty v. Kay, supra, 268 Md. 202; Karkenny v. Mongelli, supra, 35 Md. App. 187. We are aware of no instance in which either Court has held that an application filed within the 30-day period could not be considered. Perhaps — although we need not and therefore do not decide this — the limitations so clearly expressed in § 113 were intended to have effect only upon the expiration of the 30-day general revisory power.