FILOMENA
DOMAGAS,
Petitioner,
-versus-
G.R.
No. 158407
January
17, 2005
VIVIAN LAYNO JENSEN,
Respondent.
D
E C I S I O N
CALLEJO,
SR., J.:
This
is a Petition for Review on
Certiorari,
under Rule 45 of the Rules of Court, of the Decision[1] of the Court of
Appeals (CA) in CA-G.R. CV No. 73995, which affirmed the Decision[2] of
the Regional Trial Court (RTC) of Dagupan City, Branch 44, in Civil
Case No. 2000-0244-D, which declared null and void the decision of the
Municipal Trial Court (MTC) of Calasiao, Pangasinan in Civil Case No.
879.[3]
The
antecedent facts follow.
On
February 19, 1999, petitioner Filomena Domagas filed a complaint for
forcible entry against respondent Vivian Jensen before the MTC of
Calasiao, Pangasinan. The petitioner alleged in her complaint
that she was the registered owner of a parcel of land covered by
Original Certificate of Title (OCT) No. P-30980, situated in Barangay
Buenlag, Calasiao, Pangasinan, and with an area of 827 square
meters. On January 9, 1999 the respondent, by means of force,
strategy and stealth, gained entry into the petitioner’s property by
excavating a portion thereof and thereafter constructing a fence
thereon. As such, the petitioner was deprived of a 68-square
meter portion of her property along the boundary line. The
petitioner prayed that, after due proceedings, judgment be rendered in
her favor, thus:
3.
And, after trial, judgment be rendered:
a)
DECLARING the writ of Preliminary Mandatory Injunction and Writ of
Preliminary Injunction permanent;
b)
ORDERING defendant, his representatives, agents and persons acting
under her, to vacate the portion of the property of the plaintiff
occupied by them and to desist from entering, excavating and
constructing in the said property of the plaintiff described in
paragraph 2 hereof and/or from disturbing the peaceful ownership and
possession of the plaintiff over the said land, pending the final
resolution of the instant action;
c)
ORDERING defendant to pay reasonable rental at FIVE THOUSAND
(P5,000.00) PESOS per month from January 9, 1999 up to the time she
finally vacates and removes all constructions made by her in the
property of the plaintiff and up to the time she finally restores
the said property in the condition before her illegal entry,
excavation and construction in the property of the plaintiff;
d)
ORDERING defendant to pay actual damages in the amount of TWENTY
THOUSAND (P20,000.00) PESOS; moral damages in the amount of TWENTY
THOUSAND (P20,000.00) PESOS; attorney’s fees of THIRTY THOUSAND
(P30,000.00) PESOS in retainer’s fee and ONE THOUSAND FIVE HUNDRED
(P1,500.00) PESOS per court appearance fee; exemplary damages in the
amount of TWENTY THOUSAND (P20,000.00) PESOS, and, costs.
Plaintiff
further prays for other reliefs and remedies just and equitable in the
premises.[4]
The
case was docketed as Civil Case No. 879. The summons and the complaint
were not served on the respondent because the latter was apparently out
of the country. This was relayed to the Sheriff by her (the
respondent’s) brother, Oscar Layno, who was then in the respondent’s
house at No. 572 Barangay Buenlag, Calasiao, Pangasinan. The
Sheriff left the summons and complaint with Oscar Layno, who received
the same.[5]
Nonetheless,
on May 17, 1999, the court rendered judgment ordering the respondent
and all persons occupying the property for and in the latter’s behalf
to vacate the disputed area and to pay monthly rentals therefor,
including actual damages, attorney’s fees, and exemplary damages.
The fallo of the decision reads:
1)
Ordering the defendant, her representatives, agents and persons acting
under her, to vacate the 68-square meters which she encroached upon;
2)
Ordering the defendant to pay a monthly rental of P1,000.00 to the
plaintiff;
3)
To pay plaintiff actual damages of P20,000.00; attorney’s fees of
P15,000.00 and exemplary damages in the amount of P20,000.00 plus the
costs.
SO
ORDERED.[6]
The
respondent failed to appeal the decision. Consequently, a writ of
execution was issued on September 27, 1999.
On
August 16, 2000, the respondent filed a complaint against the
petitioner before the RTC of Dagupan City for the annulment of the
decision of the MTC in Civil Case No. 879, on the ground that due to
the Sheriff’s failure to serve the complaint and summons on her because
she was in Oslo, Norway, the MTC never acquired jurisdiction over her
person. The respondent alleged therein that the service of the
complaint and summons through substituted service on her brother, Oscar
Layno, was improper because of the following: (a) when the complaint in
Civil Case No. 879 was filed, she was not a resident of Barangay
Buenlag, Calasiao, Pangasinan, but of Oslo, Norway, and although she
owned the house where Oscar Layno received the summons and the
complaint, she had then leased it to Eduardo Gonzales; (b) she
was in Oslo, Norway, at the time the summons and the complaint were
served; (c) her brother, Oscar Layno, was merely visiting her house in
Barangay Buenlag and was not a resident nor an occupant thereof when he
received the complaint and summons; and (d) Oscar Layno was never
authorized to receive the summons and the complaint for and in her
behalf.[7]
The
respondent further alleged that the MTC had no jurisdiction over the
subject matter of the complaint in Civil Case No. 879 because the
petitioner, the plaintiff therein, failed to show prior possession of
the property. She further claimed that the alleged forcible entry was
simply based on the result of the survey conducted by Geodetic Engineer
Leonardo de Vera showing that the property of the respondent encroached
on that of the petitioner.
The
respondent filed a Manifestation dated August 31, 2000, and appended
thereto the following: (a) a copy[8] of her passport showing that she
left the country on February 17, 1999; (b) a copy[9] of the Contract of
Lease dated November 24, 1997, executed by her and Eduardo D. Gonzales
over her house for a period of three (3) years or until November 24,
2000; (c) her affidavit[10] stating, inter alia, that she owned the
house at Barangay Buenlag, Calasiao, Pangasinan, which she leased to
Eduardo Gonzales; that she was married to Jarl Jensen, a citizen of
Norway, on August 23, 1987 and had resided in Norway with her husband
since 1993; that she arrived in the Philippines on December 31, 1998,
but left on February 17, 1999; she returned to the Philippines on July
30, 2000 and learned, only then, of the complaint against her and the
decision of the MTC in Civil Case No. 879; her brother Oscar Layno was
not a resident of the house at Barangay Buenlag; and that she never
received the complaint and summons in said case; (d) the affidavit[11]
of Oscar Layno declaring that sometime in April 1999, he was in the
respondent’s house to collect rentals from Eduardo Gonzales; that the
Sheriff arrived and served him with a copy of the summons and the
complaint in Civil Case No. 879; and that he never informed the
respondent of his receipt of the said summons and complaint; (e) an
affidavit[12] of Eduardo Gonzales stating that he leased the house of
the respondent and resided thereat; the respondent was not a resident
of the said house although he (Gonzales) allowed the respondent to
occupy a room therein whenever she returned to the Philippines as a
balikbayan; and that Oscar Layno was not residing therein but
only collected the rentals.
In her
answer to the complaint, the petitioner alleged that the respondent was
a resident of Barangay Buenlag, Calasiao, Pangasinan and was the owner
of the subject premises where Oscar Layno was when the Sheriff served
the summons and complaint; that the service of the complaint and
summons by substituted service on the respondent, the defendant in
Civil Case No. 879, was proper since her brother Oscar Layno, a
resident and registered voter of Barangay. Buenlag, Calasiao,
Pangasinan, received the complaint and summons for and in her behalf.
The
petitioner appended the following to her answer: (a) a copy[13] of the
Deed of Absolute Sale executed by Jose Layno in her favor, dated August
26, 1992, showing that the respondent was a resident of Barangay
Buenlag, Calasiao, Pangasinan; (b) a Real Estate Mortgage[14] executed
by the respondent, dated February 9, 1999 showing that she was a
resident of Barangay Buenlag, Calasiao, Pangasinan; (c) the Joint
Affidavit[15] of Vicenta Peralta and Orlando Macalanda, both residents
of Barangay Buenlag, Calasiao, Pangasinan, declaring that the
respondent and her brother Oscar Layno were their neighbors; that the
respondent and her brother had been residents of Barangay Buenlag since
their childhood; that although the respondent left the country on
several occasions, she returned to the Philippines and resided in her
house at No. 572 located in the said barangay; and (d) the Voter’s
Registration Record[16] of Oscar Layno, approved on June 15, 1997.
After
due proceedings, the trial court rendered a decision in favor of the
respondent. The dispositive portion reads:
WHEREFORE,
judgment is rendered in favor of plaintiff Vivian Layno Jensen and
against defendant Filomena Domagas, as follows:
1.
The Decision of the Municipal Trial Court of Calasiao, Pangasinan in
Civil Case No. 879, entitled Filomena Domagas versus Vivian Layno
Jensen is declared null and void, for lack of jurisdiction over the
person of the plaintiff and the subject matter.
2.
Defendant Filomena Domagas is ordered to pay plaintiff, the following:
a.)
Actual damages, representing litigation expenses in the amount of
P50,000.00;
b.)
Attorney’s fees in the amount of P50,000.00;
c.)
Moral Damages in the amount of P50,000.00;
d.)
Exemplary Damages in the amount of P50,000.00; and
e.)
Costs of suit.
SO
ORDERED.[17]
The
trial court declared that there was no valid service of the complaint
and summons on the respondent, the defendant in Civil Case No. 879,
considering that she left the Philippines on February 17, 1999 for
Oslo, Norway, and her brother Oscar Layno was never authorized to
receive the said complaint and summons for and in her behalf.
The
petitioner appealed the decision to the CA which, on May 6, 2003,
rendered judgment affirming the appealed decision with
modifications. The CA ruled that the complaint in Civil Case No.
879 was one for ejectment, which is an action quasi in rem. The
appellate court ruled that since the defendant therein was temporarily
out of the country, the summons and the complaint should have been
served via extraterritorial service under Section 15 in relation to
Section 16, Rule 14 of the Rules of Court, which likewise requires
prior leave of court. Considering that there was no prior leave
of court and none of the modes of service prescribed by the Rules of
Court was followed by the petitioner, the CA concluded that there was
really no valid service of summons and complaint upon the respondent,
the defendant in Civil Case No. 879.
Hence,
the present petition.
The
petitioner assails the decision of the CA, alleging that the appellate
court erred in holding that the respondent’s complaint for ejectment is
an action quasi in rem. The petitioner insists that the complaint
for forcible entry is an action in personam; therefore, substituted
service of the summons and complaint on the respondent, in accordance
with Section 7, Rule 14 of the Rules of Court, is valid.
The petitioner, likewise, asserts that Oscar Layno is a resident and a
registered voter of Barangay Buenlag, Calasiao, Pangasinan; hence, the
service of the complaint and summons on the respondent through him is
valid.
The
respondent, on the other hand, asserts that the action for forcible
entry filed against her was an action quasi in rem, and that the
applicable provision of the Rules of Court is Section 15 of Rule 14,
which calls for extraterritorial service of summons.
The
sole issue is whether or not there was a valid service of the summons
and complaint in Civil Case No. 879 on the respondent herein who was
the defendant in the said case. The resolution of the matter is
anchored on the issue of whether or not the action of the petitioner in
the MTC against the respondent herein is an action in personam or quasi
in rem.
The
ruling of the CA that the petitioner’s complaint for forcible entry of
the petitioner against the respondent in Civil Case No. 879 is an
action quasi in rem, is erroneous. The action of the petitioner
for forcible entry is a real action and one in personam.
The
settled rule is that the aim and object of an action determine its
character.[18] Whether a proceeding is in rem, or in personam, or quasi
in rem for that matter, is determined by its nature and purpose, and by
these only.[19] A proceeding in personam is a proceeding to enforce
personal rights and obligations brought against the person and is based
on the jurisdiction of the person, although it may involve his right
to, or the exercise of ownership of, specific property, or seek to
compel him to control or dispose of it in accordance with the mandate
of the court.[20] The purpose of a proceeding in personam is to impose,
through the judgment of a court, some responsibility or liability
directly upon the person of the defendant.[21] Of this character are
suits to compel a defendant to specifically perform some act or actions
to fasten a pecuniary liability on him.[22] An action in personam is
said to be one which has for its object a judgment against the person,
as distinguished from a judgment against the propriety to determine its
state. It has been held that an action in personam is a
proceeding to enforce personal rights or obligations; such action is
brought against the person. As far as suits for injunctive relief
are concerned, it is well-settled that it is an injunctive act in
personam.[23] In Combs vs. Combs,[24] the appellate court held that
proceedings to enforce personal rights and obligations and in which
personal judgments are rendered adjusting the rights and obligations
between the affected parties is in personam. Actions for recovery
of real property are in personam.[25]
On the
other hand, a proceeding quasi in rem is one brought against persons
seeking to subject the property of such persons to the discharge of the
claims assailed.[26] In an action quasi in rem, an individual is named
as defendant and the purpose of the proceeding is to subject his
interests therein to the obligation or loan burdening the property.[27]
Actions quasi in rem deal with the status, ownership or liability of a
particular property but which are intended to operate on these
questions only as between the particular parties to the proceedings and
not to ascertain or cut off the rights or interests of all possible
claimants. The judgments therein are binding only upon the
parties who joined in the action.[28]
Section
1, Rule 70 of the Rules of Court provides:
Section 1.
Who may institute proceedings, and when. - Subject to the provisions of
the next succeeding section, a person deprived of the possession of any
land or building in force, intimidation, threat, strategy, or stealth,
or a lessor, vendor, vendee, or other person against whom the
possession of any land or building is unlawfully withheld after the
expiration or termination of the right to hold possession by virtue of
any contract, express or implied, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other person, may, at
any time within one (1) year after such unlawful deprivation or
withholding of possession, bring an action in the proper Municipal
Trial Court against the person or persons unlawfully withholding or
depriving of possession, or any person or persons claiming under them,
for the restitution of such possession, together with damages and costs.
Under
Section 15, Rule 70 of the said Rule, the plaintiff may be granted a
writ of preliminary prohibition or mandatory injunction:
Sec. 15.
Preliminary Injunction. – The court may grant preliminary injunction,
in accordance with the provisions of Rule 58 hereof, to prevent the
defendant from committing further acts of dispossession against the
plaintiff.
A
possessor deprived of his possession through forcible entry or unlawful
detainer may, within five (5) days from the filing of the complaint,
present a motion in the action for forcible entry or unlawful detainer
for the issuance of a writ of preliminary mandatory injunction to
restore him in his possession. The court shall decide the motion
within thirty (30) days from the filing thereof.
If,
after due proceedings, the trial court finds for the plaintiff, it
shall then render judgment in his or her favor, thus:
Sec. 17.
Judgment. – If, after trial, the court finds that the allegations of
the complaint are true, it shall render judgment in favor of the
plaintiff for the restitution of the premises, the sum justly due as
arrears of rent or as reasonable compensation for the use and
occupation of the premises, attorney’s fees and costs. If it
finds that said allegations are not true, it shall render judgment for
the defendant to recover his costs. If a counterclaim is
established, the court shall render judgment for the sum found in
arrears from either party and award costs as justice requires.
From
the aforementioned provisions of the Rules of Court and by its very
nature and purpose, an action for unlawful detainer or forcible entry
is a real action and in personam because the plaintiff seeks to enforce
a personal obligation or liability on the defendant under Article 539
of the New Civil Code,[29] for the latter to vacate the property
subject of the action, restore physical possession thereof to the
plaintiff, and pay actual damages by way of reasonable compensation for
his use or occupation of the property.[30]
As
gleaned from the averments of the petitioner’s complaint in the MTC,
she sought a writ of a preliminary injunction from the MTC and prayed
that the said writ be made permanent. Under its decision, the MTC
ordered the defendant therein (the respondent in this case), to vacate
the property and pay a “monthly rental” of P1,000.00 to the plaintiff
therein (the petitioner in this case).
On the
issue of whether the respondent was validly served with the summons and
complaint by the Sheriff on April 5, 1999, the petitioner asserts that
since her action of forcible entry against the respondent in Civil Case
No. 879 was in personam, summons may be served on the respondent, by
substituted service, through her brother, Oscar Layno, in accordance
with Section 7, Rule 14 of the Rules of Court. The petitioner
avers that Oscar Layno, a person of suitable age and discretion, was
residing in the house of the respondent on April 5, 1999. She
avers that the fact that the house was leased to and occupied by
Eduardo Gonzales was of no moment. Moreover, the Sheriff is
presumed to have performed his duty of properly serving the summons on
the respondent by substituted service.
The
contention of the petitioner has no merit.
In
Asiavest Limited vs. Court of Appeals,[31] the Court had the occasion
to state:
In an action in
personam, jurisdiction over the person of the defendant is necessary
for the court to validly try and decide the case. Jurisdiction over the
person of a resident defendant who does not voluntarily appear in court
can be acquired by personal service of summons as provided under
Section 7, Rule 14 of the Rules of Court. If he cannot be
personally served with summons within a reasonable time, substituted
service may be made in accordance with Section 8 of said Rule. If
he is temporarily out of the country, any of the following modes of
service may be resorted to: (a) substituted service set forth in
Section 8; (2) personal service outside the country, with leave of
court; (3) service by publication, also with leave of court; or (4) any
other manner the court may deem sufficient.[32]
Thus,
any judgment of the court which has no jurisdiction over the person of
the defendant is null and void.[33]
In the
present case, the records show that the respondent, before and after
his marriage to Jarl Jensen on August 23, 1987, remained a resident of
Barangay Buenlag, Calasiao, Pangasinan. This can be gleaned from
the Deed of Absolute Sale dated August 26, 1992 in which she declared
that she was a resident of said barangay. Moreover, in the Real
Estate Mortgage Contract dated February 9, 1999, ten days before the
complaint in Civil Case No. 879 was filed, the petitioner categorically
stated that she was a Filipino and a resident of Barangay Buenlag,
Calasiao, Pangasinan. Considering that the respondent was in
Oslo, Norway, having left the Philippines on February 17, 1999, the
summons and complaint in Civil Case No. 879 may only be validly served
on her through substituted service under Section 7, Rule 14 of the
Rules of Court, which reads:
SEC. 7.
Substituted service. — If, for justifiable causes, the defendant cannot
be served within a reasonable time as provided in the preceding
section, service may be effected (a) by leaving copies of the summons
at the defendant’s residence with some person of suitable age and
discretion then residing therein, or (b) by leaving the copies at
defendant’s office or regular place of business with some competent
person in charge thereof.
Strict
compliance with the mode of service is required in order that the court
may acquire jurisdiction over the person of the defendant.[34] The
statutory requirement of substituted service must be followed
faithfully and strictly and any substituted service other than that
authorized by the statute is rendered ineffective.[35] As the Court
held in Hamilton vs. Levy:[36]
The pertinent
facts and circumstances attendant to the service of summons must be
stated in the proof of service or Officer’s Return; otherwise, any
substituted service made in lieu of personal service cannot be upheld.
This is necessary because substituted service is in derogation of the
usual method of service. It is a method extraordinary in
character and hence may be used only as prescribed and in the
circumstances authorized by statute. Here, no such explanation
was made. Failure to faithfully, strictly, and fully comply with
the requirements of substituted service renders said service
ineffective.[37]
In
Keister vs. Narcereo,[38] the Court held that the term “dwelling house”
or “residence” are generally held to refer to the time of service;
hence, it is not sufficient to leave the summons at the former’s
dwelling house, residence or place of abode, as the case may be.
Dwelling house or residence refers to the place where the person named
in the summons is living at the time when the service is made, even
though he may be temporarily out of the country at the time. It
is, thus, the service of the summons intended for the defendant that
must be left with the person of suitable age and discretion residing in
the house of the defendant. Compliance with the rules regarding
the service of summons is as much important as the issue of due process
as of jurisdiction.[39]
The
Return of Service filed by Sheriff Eduardo J. Abulencia on the service
of summons reads:
Respectfully
returned to the court of origin the herein summons and enclosures in
the above-entitled case, the undersigned caused the service on April 5,
1999.
Defendant
Vivian Layno Jensen is out of the country as per information from her
brother Oscar Layno, however, copy of summons and enclosures was
received by her brother Oscar Layno on April 5, 1999 as evidenced by
his signature appearing in the original summons.
Calasiao,
Pangasinan, April 6, 1999.
(Sgd.)
EDUARDO
J. ABULENCIA
Junior Process Server[40]
As
gleaned from the said return, there is no showing that as of April 5,
1999, the house where the Sheriff found Oscar Layno was the latter’s
residence or that of the respondent herein. Neither is there any
showing that the Sheriff tried to ascertain where the residence of the
respondent was on the said date. It turned out that the occupant
of the house was a lessor, Eduardo Gonzales, and that Oscar Layno was
in the premises only to collect the rentals from him. The service
of the summons on a person at a place where he was a visitor is not
considered to have been left at the residence or place or abode, where
he has another place at which he ordinarily stays and to which he
intends to return.[41]
The
Voter’s Registration Record of Oscar Layno dated June 15, 1997 wherein
he declared that he was a resident of No. 572 Barangay Buenlag,
Calasiao, Pangasinan, as well as the Joint Affidavit of Vicenta Peralta
and Orlando Macasalda cannot prevail over the Contract of Lease the
respondent had executed in favor of Eduardo Gonzales showing that the
latter had resided and occupied the house of the respondent as lessee
since November 24, 1997, and the affidavit of Eduardo Gonzales that
Oscar Layno was not residing in the said house on April 5, 1999.
In
sum, then, the respondent was not validly served with summons and the
complaint in Civil Case No. 879 on April 5, 1999, by substituted
service. Hence, the MTC failed to acquire jurisdiction over the person
of the respondent; as such, the decision of the MTC in Civil Case No.
879 is null and void.
IN LIGHT OF ALL THE FOREGOING, the
Petition is DENIED for lack of
merit. No costs.
SO
ORDERED.
Puno,
J., (Chairman),
Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.
[1]
Penned by Associate Justice Conrado M. Vasquez, Jr. with Associate
Justices Mercedes Gozo-Dadole and Rosmari D. Carandang, concurring;
Rollo, pp. 25-33.
[2]
Penned by Judge Crispin C. Laron (Retired).
[3]
Entitled “Filomena Domagas vs. Vivian Layno Jensen.”
[4]
Records, p. 13.
[5]
Id. at 20.
[6]
Id. at 79.
[7]
Records, p. 2.
[8]
Id. at 54-56.
[9]
Id. at 57-58.
[10]
Id. at 53.
[11]
Id. at 60.
[12]
Id. at 59.
[13]
Id. at 46.
[14]
Id. at 47.
[15]
Id. at 50
[16]
Exhibit “6.”
[17]
Records, p. 126.
[18]
National Surety Co. vs. Austin Machinery Corporation, 35 F.2d 842
(1929).
[19]
Sandejas vs. Robles, 81 Phil. 421 (1948).
[20]
Id. at 424.
[21]
Asiavest Ltd. vs. Court of Appeals, 296 SCRA 539 (1998).
[22]
Hughes vs. Hughes, 278 S.W. 121 (1925).
[23]
Green Oaks Apartments, Ltd. vs. Cannon, 696 S.W. 2d 415 (1985).
[24]
60 S.W. 2d 368 (1933).
[25]
PNB vs. Court of Appeals, 153 SCRA 435 (1987).
[26]
Freeman vs. Alderson, 30 L.Ed.372 (1886).
[27]
Banco do Brasil vs. Court of Appeals, 333 SCRA 545 (2000).
[28]
Perry vs. Young, 182 S.W. 577 (1916).
[29]
ART. 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be protected in
or restored to said possession by the means established by the laws and
the Rules of Court.
Possessor
deprived of his possession through forcible entry may within ten days
from the filing of the complaint present a motion to secure from the
competent court, in the action for forcible entry, a writ of
preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within thirty (30)
days from the filing thereof.
[30]
Progressive Development Corporation, Inc. vs. Court of Appeals, 301
SCRA 637 (1999).
[31]
296 SCRA 539 (1998).
[32]
Id. at 552-553.
[33]
Lam vs. Rosillosa, 86 Phil. 447 (1956).
[34]
Venturanza vs. Court of Appeals, 156 SCRA 305 (1987).
[35]
Umandap vs. Sabio, Jr., 339 SCRA 243 (2000).
[36]
344 SCRA 821 (2000).
[37]
Id. at 829.
[38]
77 SCRA 209 (1977).
[39]
Ang Ping vs. Court of Appeals, 310 SCRA 343 (1999).
[40]
Records, p. 20.
[41]
John Hancock Mutual Life Insurance Co. vs. Gooley, 118 ALR 1484 (1938);
Albers vs. Bramberg, 32 N.E. 2d 362 (1941).
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