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fendant, since it appears from the verdict damages for torts, an assignment of error that of the jury that no such allowance was made the court erred in overruling plaintiff's motion We are of the opinion further that the evi- full amount claimed by defendant's plea, except

for a new trial because the jury allowed the dence was ample to support the verdict. the sum claimed as damages for the breach of

By another assignment it is insisted that warranty, was too general to require considerathe judgment should be reversed because the tion. court failed to prepare a correct statement of Error; Cent. Dig. $8 3022–3024; Dec. Dig. $

[Ed. Note.-Fór other cases, see Appeal and facts. In answer to this assignment, it is 732.*1 sufficient to say that a statement of facts 5. TRIAL ($ 250*)-INSTRUCTIONS CONFORMprepared by the judge and duly certified ap ITY TO PLEADINGS AND EVIDENCE. pears in the record, and that appellant has Where, under a plea of reconvention alnot attempted in any manner to point out declared that defendant was a dishonest person,

leging that defendant had falsely and maliciously wherein the statement of facts is defective, owed plaintiff money that he would not pay, and neither has he submitted any motion to for which she held a lien on his cotton, by reastrike it from the record.

son of which acts defendant was unable to mar

ket his cotton in the town of A., where he was The judgment is affirmed.

accustomed to sell his crops, and had been suspected by his neighbors and others of being dishonest, lost their respect, and suffered withal humiliation, there was neither allegation nor ev

idence of the amount of pecuniary loss resulting GILLISPIE v. AMBROSE et al.

from defendant's inability to market his crop, (Court of Civil Appeals of Texas. Ft. Worth. the claim set up should not have been submitted Nov. 1, 1913.)

to the jury. 1. LANDLORD AND TENANT ($ 223*)—CLAIMS Dig. $$ 584-586; Dec. Dig. 250.*]

[Ed. Note.- For other cases. See Trial, Cent. ARISING OUT OF THE SAME TRANSACTION.

Under Rev. Civ. St. 1911, art. 1330, pro 6. APPEAL AND ERROR (8 1140*)-CURE OF ERviding that the preceding article, which pro BOR BY REMITTITUR. vides that, if plaintiff's cause of action be a Where defendant, under a plea of reconvenclaim for unliquidated or uncertain damages tion in a number of counts claiming in the agfounded on a tort or breach of covenant, the degregate $196.50, obtained a verdict of $136.50, fendant shall not be permitted to set off any indicating that the jury allowed a portion of a debt due him by the plaintiff, and, if the suit claim of $70, which under the pleadings and evibe founded on a certain demand, the defendant dence should not have been submitted, the judgshall not be permitted to set off unliquidated or ment would be reversed unless defendant filed a uncertain damages founded on a tort or breach remittitur of the whole $70. of covenant. shall not be so construed as to pro [Ed. Note.-For other cases, see Appeal and hibit the defendant from pleading in set-off any Error, Cent. Dig. 88 4462-4476; Dec. Dig. $ counterclaim founded on a cause of action aris- 1140.*] ing out of, incident to, or connected with plaintiff's cause of action, in a landlord's action to Appeal from Jones County Court; Joe C. recover rent and compensation for the use of Randel, Judge. farming implements and mules, the defendant

Action by Mrs. Jerome Gillispie against could set up as a counterclaim a breach of warranty of two horses which he agreed to buy from J. W. Ambrose and others. Judgment for the landlord in part consideration for the lease, defendants, and plaintiff appeals. Reversed since this claim arose out of plaintiff's cause and remanded, unless plaintiff files remittiof action.

tur. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. 88 885–893; Dec. Dig. 8 H. H. Sagebiel, of Ganado, and W. S. Pope, 223.*]

of Anson, for appellant. Brooks & Brooks, 2. PLEADING ($ 228*)–EXCEPTION TO PLEAD- of Anson, and Davenport & Davenport, of ING GOOD IN PART. An exception to five counts in a petition of

Stamford, for appellees. reconvention was properly overruled where one of the counts stated a proper counterclaim.

DUNKLIN, J. J. W. Ambrose and Guy [Ed. Note. For other cases, see Pleading, Cent. Ambrose rented land from Mrs. Jerome GilDig. 89 584-590; Dec. Dig. 8 228.*]

lispie, who instituted this suit against them 3. PLEADING (§ 228*)-DEMURRER-OPERATION to recover several items claimed to be due AND EFFECT OF DECISION ON DEMURRER.

for rents and for the use of farming impleAn exception of misjoinder of causes of action is properly addressed to the entire pleading,

ments and mules. But the suit was disand, if sustained, the entire pleading is strick" missed as to the defendant Guy Ambrose. en out, leaving it optional with the pleader to J. W. Ambrose, in addition to a general deselect such portions of the plea as he may see fit, nial, filed a plea in reconvention in which he and the court cannot make this selection for him; and hence an exception to five counts in a plea sought to recover for certain labor performed of reconvention for misjoinder, by which it was for the plaintiff and in which he further proposed to strike out such counts and per- sought to recover damages, the nature of mit three other counts to remain, was properly which will hereinafter be noted. Judgment overruled.

[Ed. Note.--For other cases, see Pleading, was rendered upon the verdict of a jury deCent. Dig. 88 584–590; Dec. Dig. $ 228.*] nying plaintiff any recovery and awarding 4. APPEAL AND ERROR (8 732*)-ASSIGNMENTS defendant a recovery against the plaintiff for OF ERROR-SUFFICIENCY.

$136.50, from which plaintiff has appealed. In a landlord's action for rent and for com The land was rented for two years, as pensation for the use of farming implements and mules, in which the tenant filed a plea of recon- shown by two leases, which were in writing, vention for breach of warranty and to recover and one of them contained the stipulation •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

that defendant would purchase from the out of an alleged breach of warranty of the plaintiff two horses and would pay plaintiff condition and ages of the two horses which for one of them $100 and for the other $135. he had agreed to buy from the plaintiff in This agreement to purchase the horses was part consideration for the lease of the land. one of the considerations for the lease to the This claim arose out of the plaintiff's cause defendant.

of action, and hence was a legitimate counterIn the fourth count of defendant's plea in claim to plaintiff's suit. Revised Civil Statreconvention it was alleged that plaintiff utes, art. 1330. The exception now under diswarranted those two horses to be in sound cussion having been addressed to this claim, condition and of certain ages, but that they together with four other counterclaims menwere both unsound and older than represent- tioned above, collectively, and being in efed, and that by reason of those misrepresen- fect a general demurrer to all five of those tations they were worth $60 less than the claims, was properly overruled. This concluprice which defendant agreed to pay, and he sion renders it unnecessary to determine sought to recover of plaintiff that sum as whether or not the other counterclaim could damages. By the fifth count in the plea properly be considered, if special exceptions damages were claimed in the sum of $17.60 had been addressed to each one separately. as the value of certain feed stuffs which it [3] Another special exception was addresswas alleged belonged to the defendant and ed to the five counts in the plea of reconwere wrongfully taken from his barns during vention above noted upon the ground that his absence by plaintiff's agent. By the sixth the claims there asserted sounded in tort count in the plea it was alleged that plaintiff, and were improperly joined to the claims through her agents, caused his arrest and made in the first, second, and third counts in prosecution on a charge that he had unlaw- the plea which arose from contractual relafully used two of her mules without her con- tions. By this exception it was proposed to sent; that he had been duly acquitted of the permit the claims set out in the first, seccharge upon trial; that the prosecution of ond, and third counts to remain and to strike him by the plaintiff was malicious and without the remainder of the counts. As we unout probable cause; and that he was dam- derstand the rule, an exception of misjoinder aged thereby in the sum of $15, the fee which of causes of action is properly addressed to he was forced to expend in the employment the entire pleading, and, if the exception of an attorney to represent him, and in is sustained, the entire pleading is stricken the further sum of $5, loss of time in at- out, thus leaving it optional with the pleader tending court. By the seventh and eighth to select such portions of the plea as he counts in the plea it was alleged that de- may see fit to urge, and it is not the province fendant had falsely and maliciously published of the court to make this selection for him. and declared that defendant was a dishonest Furthermore, as noted already, the claim person, was owing plaintiff money that he made in the fourth count of the plea was would not pay, that he was due her rent for a proper counterclaim. which she held a lien upon the cotton grown A general demurrer was addressed to the upon the premises by the defendant, and entire plea in reconvention, and by different that by reason of such acts on the part of assignments it is insisted that upon such dethe plaintiff he was unable to market his murrer certain counts in the plea should have cotton in the town of Anson, where he was been stricken out. These assignments are accustomed to sell his crops, and had been overruled for the reason that at all events suspected by his neighbors and others of be some of the counts were proper, and it was ing dishonest, had lost their respect and not the duty of the trial court to carve the esteem, and had suffered mental humiliation demurrer into separate parts and apply it to and harassment by reason of such charges, the different items and to sustain it as to all to his damage in the sum of $70, for some counts and overrule it as to others. which he prayed judgment.

The proposition presented by the general de[1, 2] Plaintiff addressed an exception to murrer was that the entire plea should be those five counts in the petition collectively, stricken out, and to have sustained this clearwhich was overruled. By the first assign-ly would have been error for the reasons ment of error complaint is made of that already noted. ruling. By the first proposition it is insisted [4] By the fifth assignment it is contended that the damages claimed and to which the that the court erred in overruling plaintiff's exception is addressed are for tort and motion for a new trial because the jury albreach of covenant, which cannot be pleaded lowed the full amount claimed by the plea and set off against plaintiff's claim, which in reconvention except the sum of $60 claim. is a certain demand. By the second proposi- ed as damages for a breach of warranty in tion it is insisted that, if plaintiff's de- the sale of the two horses above mentioned. mand be unliquidated, defendant's counter- This is the only reason assigned for the claims cannot be offset because they con- contention that the verdict was contrary to stitute unliquidated demands and are found the law and the evidence and is too general ed upon alleged torts. As noted already, the to merit consideration. claim made in the fourth count in the plea We are unable to say that the jury allowed in reconvention was for damages growing the defendant a recovery for attorney's fees

ORITY.

in defending him in the criminal prosecution 2. VENDOR AND PURCHASER (8 54*)-REMEDIES noted above and for the $5 claimed for loss

OF VENDOR-LIEN. of time in attending court. Hence the sixth rior title until the purchase money is paid.

A vendor of real estate retains the supeassignment of error, in effect that the trial

[Ed. Note.-For other cases, see Vendor and court erred in overruling the motion for new Purchaser, Cent. Dig. 85; Dec. Dig. $ 54.*] trial because those two items were allowed 3. CHATTEL MOBTGAGES (8 138*)–LIEN-PRIby the jury, is overruled. [5, 6] The aggregate of all the items claim- landlord a preference lien upon the crops rais

Rev. Civ. St. 1911, art. 5475, gives to a ed by the defendant in his plea of reconven-ed for any rent and for money and supplies furtion was $196.50. By the verdict the defend- nished to the tenant in making a crop. A purant was allowed a total of $136.50, thus in-chaser in possession of land, subject to a vendicating that they allowed at least a por- 23, 1911, executed to defendant a chattel mort

dor's lien in favor of the plaintiff, on November tion of the claim of $70 made in the seventh

gage on cotton to be raised the next year on and eighth counts of the plea for the alleged the land, and thereafter on March 26, 1912, bepublication of false reports concerning the ap- fore any crop had been planted, conveyed to pellant. The only false statement alleged rental contract with plaintiff for the lands. to have been made by the plaintiff and upon Held that, though a chattel mortgage upon which the claim for damages in these two property not in existence may become operative counts was predicated consisted of an asser- possession of the mortgagor, yet that, as the

if the property subsequently comes into the tion by the plaintiff that defendant was in mortgagor never acquired any but a qualified indebted to her for rents, and that for such interest in the crop, the landlord's lien thereon debtedness she held a lien upon the cotton was superior to that of the mortgagee. grown upon the farm by the tenant, and the

[Ed. Note.-For other cases, see Chattel Mort

gages, Cent. Dig. 88 228-236; Dec. Dig. & 138.*] only predicate for damages claimed as a result of such false statement was that the de

Appeal from Parker County Court; T. F. fendant could not market his crop in the Temple, Judge. town of Anson, and that he sustained feel

Action by W. T. Ivy against H. R. Pugh,

Judgment for ings of humiliation and was suspected of dis-J. M. Hart, and another. honesty by his neighbors on account of such defendant Hart, and plaintiff appeals. Recharges. The amount of pecuniary loss re

versed and judgment rendered for plaintiff sulting from his inability to market his cot- against defendant Hart. ton in the town of Anson was neither alleged R. L. Stennis, of Weatherford, for appelin the plea nor supported by any testimony. lant. Preston Martin, of Weatherford, for Such being the record, the court should not appellee. have submitted to the jury the claim last noted. Accordingly appellant's seventh as

SPEER, J. This suit was instituted by signment of error to the trial court's refusal W. T. Ivy against H. R. Pugh, J. W. Light, of the motion for new trial is sustained, and, and J. M. Hart, alleging that the defendant because this claim was allowed, in part, at Hart had wrongfully converted to his own least, the judgment will be reversed and the use certain cotton upon which plaintiff as cause remanded, unless appellee shall within landlord held a valid lien as against Pugh ten days from the rendition of this decision and Light, his tenants. Hart pleaded that he file a remittitur of $70, the full amount of took the cotton under a mortgage lien which the claim last referred to. If such remittitur was prior in law to plaintiff's lien. The is filed within the period indicated, the judg- honorable county judge before whom the ment will be so reformed as to be in favor case was tried made the following findings of of appellee for $66.50 only and in all other fact, which we adopt: respects affirmed, otherwise the judgment "1. I find that on the 10th day of Septemwill be reversed and the cause remanded for ber, 1909, the defendant H. R. Pugh puranother trial. In either event the costs of ap- chased 70 acres of land from one H. Burns in peal are taxed against the appellee.

Parker county, Tex., and the said H. R. Pugh with his family has resided upon said 70 acres of land since said purchase.

"2. About the same time the defendant J.

W. Light purchased a small farm of about IVY V. PUGH et al.

70 acres, situated near the said farm of H. (Court of Civil Appeals of Texas. Ft. Worth. R. Pugh, and since said purchase has resided Nov. 8, 1913.)

with his family on said farm. 1. ESTOPPEL (8 37*)-PROPERTY SUBJECT- AFT- "3. On the 1st day of July, 1910, the said ER-ACQUIRED PROPERTY-CROPS.

H. R. Pugh and J. W. Light purchased from A chattel mortgage upon property not in F. M. Copps 70 acres of land joining said existence may become operative if the property covered subsequently comes into the pos- farms of H. R. Pugh and J. W. Light for the session of the mortgagor, on the equitable prin consideration of $1,400. That the title to ciple of estoppel, rather than on the principle said 70 acres was then in F. M. Copps, by that the execution of the mortgage then creates a valid lien upon the thing mortgaged.

agreement of all parties, the conveyance was (Ed. Note. For other cases, see Estoppel,

made by deed direct from F. M. Copps to H. Cent. Dig. 88 91-98; Dec. Dig. Á 37.*]

R. Pugh and J. W. Light, and the total con

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

sideration was to be paid by H. R. Pugh and signed and duly acknowledged by said Pugh J. W. Light to plaintiff, he having advanced and Light and the wife of Light was on the entire purchase price, and was evi. said 26th day of March, 1912, delivered to denced by seven vendor's lien notes executed plaintiff with the understanding that, if by H. R. Pugh and J. W. Light in the sum plaintiff desired, the wife of Pugh would of $200 each and payable to plaintiff, and to come in thereafter and sign and acknowlsecure said notes a vendor's lien was ex-edge the deed; and thereafter on the 28th pressly retained in said deed, and said deed day of September, 1912, the wife of said was duly recorded in the deed records of Par-Pugh signed and duly acknowledged said ker county on the 12th day of July, 1910. deed when same was presented to her for her

"4. On the 23d day of November, 1911, the signature by plaintiff, and said deed was said H. R. Pugh was indebted to the de- duly recorded in the records of Parker fendant J. M. Hart in the sum of $385.10, county on said 28th day of September, 1912. and on said date executed and delivered to On said 26th day of March, 1912, the wife · said J. M. Hart his note in writing for said of Pugh was prevented by sickness from comsum of $385.10 due October 1, 1912, with in- ing to town and joining in the execution of terest from date at the rate of 10 per cent. said deed, but then fully approved of said per annum, and on said 230 day of Novem- conveyance for said consideration. ber, 1911, the said H. R. Pugh by his chattel “8. On the 26th day of March and immemortgage in writing conveyed to said J. M. diately after the delivery of said deed by said Hart the following described property: 'My Pugh and Light to plaintiff, the said Pugh first eight bales of cotton raised next year, and Light and plaintiff entered into a rental 1912, raised on my farm nine and one-half contract in writing, whereby the plaintiff, in miles from Weatherford on Toto Road, said consideration of the sum of $144.50 to be eight bales to weigh five hundred pounds and paid by said Pugh and Light, rented and to be free from all other liens, said cotton leased the said 70 acres to said Pugh and to be raised in the field north of the house. Light for and during the term beginning on I am to plant thirty acres and work in a the 26th day of March, 1912, and ending on farmer-like way.' Said mortgage provides the 31st day of December, 1912, and at the that it is given to secure said note for $385.10 same time the said Pugh and Light executed and to cover any and all other amounts that and delivered to plaintiff their joint note for the said Pugh then owes and might there the sum of $144.50 of date March 26, 1912, after become indebted to and owe the said J. and payable to plaintiff on the 1st day of M. Hart, such as book accounts, etc., and November, 1912, in the sum of $144.50, with said mortgage was on the 23d day of Novem- interest from maturity at the rate of 10 per ber, 1911, duly filed for record in the office cent. per annum, and providing for 10 per of the county clerk of Parker county, Tex., cent. as attorney's fees, if collected by suit and was on said date filed on the chattel or placed in the hands of an attorney for mortgage records for said county.

collection, and by the terms of said rental “5. The said J. M. Hart after the 23d day contract it was expressly agreed that plainof November, 1911, and on faith of said tiff should have his preference landlord's lien mortgage, sold supplies to said H. R. Pugh in as provided by the statutes to secure his the sum of $49.05 and received payment rent, and in said rental contract plaintiff thereon in the sum of $11.70, and at the in- gave to Pugh and Light an option of buying stitution of this suit there was due on said back said 70 acres of land upon certain conaccoudt a balance of $37.35.

ditions any time prior to January 1, 1913, “6. At the institution of this suit the said which option was forfeited. H. R. Pugh was indebted to the said J. M. "9. The said J. M. Hart had no notice of Hart in said sum of $385.10 with interest the sale of said land by Pugh and Light to thereon at the rate of 10 per cent. per an- plaintiff until after the first four ba les had num, on the 23d day of November, 1911, and been gathered by Pugh from the said field the additional sum of $37.35, balance on north of his house and had been brought to said account.

market, and of said account advanced by “7. On the 26th day of March, 1912, the said Hart to said Pugh after the execution said H. R. Pugh and J. W. Light on good of said mortgage as aforesaid the sum of $18 faith by their deed in writing conveyed to had been so advanced after the 26th day of the plaintiff the 70 acres of land which had March, 1912. been conveyed to them by said F. M. Copps “10. The said 70 acres of land was rented as aforesaid, and said conveyance was made by plaintiff to said Pugh and Light jointly, in consideration of the cancellation and sur- but the said Pugh by agreement with Light render by plaintiff to said Pugh and Light of worked and cultivated the north half of said seven vendor's lien notes then held by said tract and the said Light by agreement plaintiff in the sum of $200 each with all in- with said Pugh worked and cultivated the terest due thereon. The amount due by said south half of said tract, during the year Pugh and Light on said notes to plaintiff 1912, but the plaintiff had nothing to do was the full value of said seventy acres of with said agreement between Pugh and land. The wife of said J. W. Light joined Light. her husband in said deed, and said deed "11. During the year 1912, said Pugh rais

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ed and gathered from the north half of said the six bales of cotton gathered by Pugh
70 acres six bales of cotton, all of which from the north half of the plaintiff's 70-acre
was of the value of $300, and all of which tract was superior to plaintiff's landlord's
was appropriated by said Hart and applied lien. The plaintiff has appealed.
by him on said indebtedness due him by We think the holding of the trial judge
said Pugh, and all of said six bales of cot- was error.
ton were gathered from the field on which

[1] It is well settled in this state that a said Pugh had given said Hart a mortgage chattel mortgage executed upon property at as aforesaid.

the time not in existence may become oper"12. On the 26th day of March, 1912, when ative if the property covered subsequently said Pugh and Light conveyed said 70 acres comes into the possession of the mortgagor. of land to plaintiff, no crop had been plant- This, however, is not upon the ground that ed on said land, and all cotton grown on said the execution of such instrument creates at land during the year 1912 was planted after the time a valid lien upon the thing mortthe execution and delivery by said Pugh gaged, for in the supposed case the thing and Light to plaintiff of said deed on the mortgaged is not in existence, and neces26th day of March, 1912.

sarily there can be no lien against it. It is "13. No part of the rents due by said rather upon the equitable principle of esPugh and Light have been paid, but defend-toppel, or, as it is sometimes expressed, that ant J. W. Light tendered to plaintiff, Ivy, the subsequent acquisition of the property one-half of the amount of the rental note feeds the mortgage. sued on prior to trial in justice court upon [2] It is equally well settled, under the condition that he be released from further peculiar rule of decision in this state, that liability on the note.

the vendor of real estate retains the superior "14. This suit was instituted in less than title until the purchase money is paid. 30 days after the removal of the first three [3] Bearing in mind these rules of debales of cotton from the Ivy premises and cision, we hold that appellant's landlord's before the last three bales had been re- lien is superior to appellee Hart's mortgage moved.

lien. Appellee's mortgage lien became effec"15. In the field north of the house re- tive upon the planting and growing by deferred to in said mortgage there was one fendant Pugh of the crop embraced in its patch of cotton of about 18 acres directly terms, but it was effective only to the exnorth of the house, and another patch of tent of the interest owned by said Pugh in 20 acres in the same field northwest from the crops. Pugh could in no event convey a the house, and the eight bales of cotton tak- greater title than he had, which, under the en by J. M. Hart were gathered from this operation of our landlord's lien act (Revised 20-acre patch, six bales off the Ivy land, and Statutes 1911, art. 5475), was one subject to two bales of the home tract of Pugh, pur- the lien of the landlord for rents. In other chased by him from Burns; but all the cot- words, he never acquired an absolute title ton was grown in one inclosure or fence to the property previously mortgaged, but north of the house, though in two patches. only a qualified title. So that the mortgage

“16. This suit was instituted by plaintiff, W. in the very nature of things could only opT. Ivy, in the justice court of precinct No.1 erate upon the limited ownership of the mortin this county against the defendants H. R. gagor. See Neblett v. Barron (No. 6,236) 160 S. Pugh and J. W. Light, for rents on said 70-W. 1167, not yet officially reported. The prinacre tract of land, known as the Ivy tract, ciple which controls us is illustrated in the for the year 1912 in the sum of $144.50 and case of New Orleans & 0. Ry. Co. v. Melinterest and attorney's fees as evidenced by len, 12 Wall. 362, 20 L. Ed. 434, holding that said rent note and for a foreclosure of his a mortgage by a railroad company covering landlord's lien on all cotton grown by said all its future acquired property attaches Pugh and Light on said land during the year only to such interest therein as the company 1912, and against the defendant J. M. Hart; acquires, subject to any liens under which it the plaintiff alleging that said J. M. Hart comes into the company's possession. A had converted to his own use and benefit contrary conclusion upon facts very similar part of said crop and was setting up some has been reached by the Supreme Court of sort of claim or lien against all of said Alabama (Hamilton v. Maas, 77 Ala. 283), crop, and prayed for judgment on said rent but the decision in that case appears to be note and for foreclosure of his landlord's based in part upon a statute which is not lien and for judgment against said Hart before us, and furthermore proceeds upon for such part of said crop as had been con- the theories that the purchaser of lands not verted by said Hart, and for judgment de-paid for is the owner thereof, and that the claring said landlord's lien to be superior to mortgagee of chattels takes the legal title the mortgage lien of said J. M. Hart. The thereto, which theories are not in consonance pleadings of the plaintiff in said justice court with the decisions of this state. · and in this court were oral."

The judgment of the county court is reUpon these facts the trial court held that versed, and upon the facts stated judgment the mortgage lien of the defendant Hart on is here rendered in favor of appellant

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