Matter of Sorrell

Menchine, J., delivered the opinion of the Court. On November 24, 1972 separate juvenile petitions against Howard Sorrell (000210) and Calvin Sorrell (000358) were filed. Each petition alleged that the two brothers “in company with Thurston Sorrell (adult)” did assault “one Russell Sapp by striking him with fists,” on October 29, 1972. The petitions charged that each was delinquent.

A juvenile master, after hearing on February 2, 1973, found both to be delinquent children. Exceptions to the finding were filed and the case heard de novo in the Circuit Court of Baltimore City, Division for Juvenile Causes, on March 1, 1973. The juvenile judge found both to be delinquent. On April 4,1973 a disposition hearing was held and orders for probation as to each juvenile were passed by the court.

At the April 4, 1973 hearing the juvenile judge declared his intention to pass an order requiring the parents of the two youths “to pay the sum of $2,000.00 by way of restitution to Mr. and Mrs. Sapp [parents of assaulted child] on an installment basis through the probation department. The proposed action apparently was to be taken under authority granted by Article 26, § 71A, 1 as implemented procedurally by Article 26, § 70-22 2 and Maryland Rule 922. Article 26, § 71A reads as follows: “Any judge having, sitting, and exercising ¹⁸² jurisdiction in any juvenile cause, lawfully before him, shall, in his discretion, have power to award a judgment in favor of a wronged person, partnership, corporation or other business entity, or the federal, State or local government or any agency thereof and against any parent for acts of wilful or malicious destruction or theft of any property owned by such wronged person, business entity or government or any medical expenses incurred by an injured person wilfully or maliciously caused or committed by the minor child of such parent, or such judge may order such parent to make restitution to the person, business entity or government whose property has been so destroyed or stolen or who has incurred such medical expenses and shall have full power to cite for contempt for a violation thereof if the facts of a particular case before him indicates sufficient ability of such parent to comply with such order. The limit of such parent’s liability for all damages including medical expenses under this section shall not exceed the sum of one thousand dollars ($1,000.00).

The court may pass an appropriate order requiring such minor child who wilfully or maliciously destroys or steals property or wilfully or maliciously injures another to make restitution or pay the medical expenses himself if such is feasible considering the age and circumstances of the child, and the requirement of the child’s making restitution or paying the medical expenses shall precede any liability of the parent hereunder.” § 70-22 in appropriate part reads as follows: “The court on its own motion * * * may make an appropriate order directing * * * or otherwise controlling the conduct of a person who is properly before the court, * * * if: (1) An order of disposition has been made in a proceeding under this subtitle; ¹⁸³ (2) The court finds that the conduct: * * * (iv) will provide reimbursement of costs, expenses, or restitution; and (3) Notice of the application or motion and the grounds therefore have been given as prescribed by Maryland Rules.” Rule 922 reads as follows: “Controlling Conduct of Person Before the Court. a. On Motion or Application. The court, upon its own motion or on application of any individual, agency or institution having supervision, legal custody or other interest in the child, may direct, restrain or otherwise control the conduct of a person who is properly before the court in accordance with Code, article 26, section 70-22. b. Notice of Hearing — Content.

The clerk shall issue notice of a hearing setting forth in concise language the nature of and the grounds for the relief requested. Such notice shall be served by personal service or registered mail, not less than two days before the hearing, upon the parties affected by the relief sought, unless such notice is waived.” For procedures required of the clerk, see also Maryland Rule 906. No charging document against the parents was filed. On May 1,1973, after a hearing, separate orders in the two cases were passed, each requiring both parents jointly to make restitution in the amount of $1,000.00 each.

On May 21, 1973 an appeal was filed encompassing all judgments and orders. That appeal was filed more than thirty (30) days from the date of entry of the orders for probation against the juveniles (April 4, 1973), but was ¹⁸⁴ within thirty days from the date of the orders for restitution against the parents (May 1,1973). The lower court, acting sua sponte under Rule 1013, on June 1, 1973 struck the appeal of May 21, 1973 as untimely filed. On June 28, 1973 separate appeals were filed with the two cases combined here within a single record.

The appellants’ brief raises, or seeks to raise, the following issues: “I. Was the evidence sufficient to support a finding of delinquency?

II

Is the finding of delinquency a part of the adjudicatory hearing or a part of the disposition hearing?

III

Was the action of the Trial Judge erroneous when he ordered restitution in the amount of $2,000.00?

IV

Was the action of the Trial Judge proper when he struck the Appellants’ appeal? ” Pursuant to Rules 322 and 1055, the State filed a motion ne recipiatur as to Issues I, II and El upon the ground that they are not before the Court. Issues I and II under the Motion Issues I and II clearly are not before us. The disposition hearing was a final hearing. Art. 26, § 70-17. 3 Although an appeal to this Court lies, (§ 70-25) the appeal filed on May 21, 1973 as to the orders relating to Howard Sorrell and Calvin Sorrell, was not taken within thirty days from April 4,1973.

It was not timely filed. The trial court’s action as applied to these orders was correct. The State’s motion ne recipiatur as to Issues I and II will be granted. Rule 1012.

Blackstone v. State, 6 Md. App. 404 , 251 A. 2d 255 . Issue III under the Motion The May 21, 1973 appeal in express terms related to all ¹⁸⁵ final orders. It is clear that the appeal of that date was timely filed as to the orders requiring parental restitution. The State’s motion ne recipiatur as to Issue III suggests, however, that the subject appeal is from the lower court’s order of June 1, 1973 only and that all issues attempted to be raised by the appeal of May 21,1973 must abide subsequent action.

Conceding that the parents ultimately would be entitled to appeal the sufficiency of the restitution orders, the State urges that the appeal filed on May 21,1973 wholly was aborted by the trial court’s action in striking that appeal. We do not agree. It is true, of course, that when the trial court exercises the powers granted by Rule 1013, our preliminary inquiry on subsequent appeal is the determination from the record whether the appeal had been timely taken. If the record shows that it was not, the appeal will be dismissed.

On the other hand, where, as here, the record shows that the trial court erred in striking the earlier appeal, all issues timely presented by the latter will be heard on the merits. Fragmented appeals would otherwise result. The appeal of May 21, 1973 was timely filed as to the judgments for restitution against the parents of the juveniles. Accordingly, we deny the State’s motion ne recipiatur as to Issue III.

Constitutional Aspects of Issue III The power of the court to pass the restitution orders has been raised. In the absence of statute, a parent is not responsible for the wrongful acts of his minor child. Kerrigan v. Carroll, 168 Md. 682 , 179 A. 53 . Article 26, § 71A, previously quoted, attempts to alter that common law rule.

Forty-six states 4 are said to have enacted statutes imposing strict vicarious liability upon parents for damages caused by wilful misconduct of their infant children. Most of the statutes provided limited reimbursement for property ¹⁸⁶ damage only. Fourteen, including that of Maryland, impose limited strict vicarious liability both for property damage and for medical expenses stemming from personal injuries. The constitutionality of such statutes has been attacked in four cases.

In General Insurance Co. of America v. Faulkner, 130 S.E.2d 645 [North Carolina]; Kelly v. Williams, 346 S.W.2d 434 [Texas Civil Appeals]; and Mahaney v. Hunter Enterprises, Inc., 426 P. 2d 442 [Wyoming] the constitutionality of the statutes was upheld. In Corley v. Lewless, 182 S.E.2d 766 [Georgia] the statute was held unconstitutional. Faulkner, supra, thus explicated its position favoring constitutionality (p. 650): “[The statute’s] rationale apparently is that parental indifference and failure to supervise the activities of children is one of the major causes of juvenile delinquency; that parental liability for harm done by children will stimulate attention and supervision; and that the total effect will be a reduction in the antisocial behavior of children.” thereafter declaring: “It is our opinion, and we so hold, .that the enactment by the General Assembly of G.S. §1-538.1 is within the police power of the State of North Carolina, and that it is not violative of the provisions of Article I, Section 17, of the State Constitution, or of the provisions of the Fifth Amendment to the Federal Constitution.” In Kelly, supra (p. 437), the rationale for constitutionality was centered in its adoption of the postulate of a law review article that “* * * these legislatures * * * have decided, that in all fairness, it is better that the parents of these young tortfeasors be required to compensate those who are damaged, even though the parents be without fault, rather than to let the loss fall upon the innocent victims.” 5 ¹⁸⁷ In