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be looked to in interpreting the statute in con MYERS, J. Appellant commenced this actroversy. As we have seen, the spirit and pur tion against appellees, charging appellee Carr pose of said employers' liability act, so far as with the sale of real estate belonging to aprailroads are concerned, was the protection of pellant's decedent, and appropriating the employés engaged in the dangerous and haz proceeds arising from such sale to her own ardous work of operating railroads in this use. Also with the conversion of personal state, and we hold that it applies to every property, and personal judgment is demandcorporation, company, copartnership, or per ed. The complaint consisted of two parason engaged in the dangerous and hazardous graphs. A demurrer for want of facts was business of operating a railroad, and their sustained to the first, and thereafter the employés who are engaged in, such dangerous second paragraph was dismissed. Judgment and hazardous work.

in favor of appellees. The ruling of the It is not necessary, therefore, to decide

court in sustaining the demurrer to the first whether or not said employers' liability act paragraph is the only error assigned. would be constitutional, if it only applied “to The substance of the paragraph in ques. corporations engaged in operating railroads tion shows that appellant is the duly qualiand not to persons engaged in the same busi

fied and acting administrator of the estate ness" as claimed by appellant.

of J. P. Oglebay, Jr., deceased; that said Under the fifth clause of rule 22 (55 N. decedent left, as his only heirs at law, his E. vi), no alleged error or point not con wife, now Ada May Carr, one of the appeltained in appellant's statement of points can lees herein; that no administration was ever be raised afterwards, either by reply brief, or had upon said estate; that decedent at the in oral or printed argument, or on petition time of his death was the owner of certain for rehearing, but will be considered waived.

real estate in Tippecanoe county, Ind.; that Under rule 24 (55 N. E. vi), the brief may be thereafter his said wife sold said lands, and, followed by an argument, which shall be

in payment therefor, received certain promisconfined to a discussion and elaboration of

sory notes; that said notes, as well as the the points contained in the briefs.

proceeds resulting therefrom, belong to the Having determined all the questions not estate of said decedent, and appellant, as ad. waived, and finding no available error, the ministrator, is entitled to the same, to be judgment is affirmed.

administered upon as provided by law; that (40 Ind. App. 125)

a claim for $1,000 evidenced by a promissory TIPPECANOE LOAN & TRUST CO. V. note executed by the said Oglebay in his CARR et al. (No. 5,818.) 1

lifetime has been filed against said estate; (Appellate Court of Indiana. Division No. 1.

"that there is now due from said defendants Oct. 30, 1906.)

to said complainant, the sum of $2,000, on 1. ADMINISTRATORS-ACTIONS-COMPLAINT. account of moneys and other personal propComplaint in an action by an administrator

erty, which the said defendant Ada May Carr against decedent's sole heir, charging defendant

has wrongfully converted to her own use, with the sale of real estate belonging to decedent, and that a certain sum is due from defend

which said property belongs to your comant to complainant on account of moneys “and plainant, as administrator of said estate, as other personal property” wrongfully converted aforesaid; "that the assets above referred to by defendant, does not by the use of the words

are the only assets to the knowledge of apand other personal property," sufficiently allege that decedent at the time of his death pellant, out of which to pay the liabilities owned any personal property.

thereof; that appellee Ada May Carr is a 2. SAME ASSETS OF DECEDENT'S ESTATE

nonresident, and the National Fowler Bank REAL PROPERTY-PROCEEDS OF SALE. Where the sole heir sold land belonging to

of Indiana is made a garnishee defendant, decedent's estate, and chargeable with the pay

under the belief that it has in its possession, as ment of decedent's debts, the administrator is agent of appellee, said notes or the proceeds not entitled to convert the proceeds into assets thereof. Judgment for $2,000 is demanded. for the payment of debts, as the sale does not abridge the administrator's right to convert the

1. There is no direct averment in this paraland into assets for that purpose.

graph that appellant's decedent, at the time 3. APPEAL-HARMLESS ERROR.

of his death, owned any personal property. Where judgment in the main action was The statement that "other personal property" for defendant, the sustaining of the demurrer of the garnishee was harmless, as no judgment

was converted by Mrs. Carr to her own use, could be sustained against him.

in the absence of a showing of property of

that character to appropriate, is of no conAppeal from Circuit Court, Tippecanoe

sequence. The rule is that matters of necesCounty; R. P. De Hart, Judge.

sary inference from substantial facts are to Action by the Tippecanoe Loan & Trust

be considered on demurrer, although they Company as administrator of the estate of

may be imperfectly or defectively pleaded. J. P. Oglebay, deceased, against Ada May Carr and another, as garnishee.

Malott v. Sample, 164 Ind. 645, 74 N. E. 245; From a

Wagoner v. Wilson, 108 Ind. 210, 8 N. E. judgment sustaining the demurrers of de

925; Evansville, etc., R. R. Co. v. Darting, 6 fendant and garnishee, plaintiff appeals. Af

Ind. App. 375, 33 N. E. 636. But the firmed.

pleader is not entitled to have a substantial Will R. Wood and Oglebay & Oglebay, for or ultimate fact inferred from a mere recital appellant. Stuart, Hammond & Simms, for or conclusion in aid of a pleading thus chalappellees.

lenged (Greenfield Gas Co. v. Trees, 165 Ind. * Rehearing denied. Transfer to Supreme Court denied.

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209, 75 N. E. 2; Indianapolis, etc., Transit Co. trator in any manner thereby suffered any 7. Foreman, 162 Ind. 85, 98, 69 N. E. 669; injury or damage whatever. Therefore, as South Bend, etc., Plow Co. v. Cissne, 35 to such administrator, we cannot say, under Ind. App. 373, 74 N. E. 282), and this we the pleaded facts, that the Carr sale was unwould be compelled to do if the pleader's lawful, or that her possession of the proceeds statement in this paragraph in regard to received from such sale is wrongful. The prinpersonal property is to have any force. The ciple underlying appellant's argument applies law is well settled in this state that the to persons characterized by our statute (sectitle to lands upon the death of the owner tion 2413 Burns' Ann. St. 1901) as intermedintestate, immediately vests in the heirs of dlers, and is not applicable to the case at bar, such deceased owner, subject to be divested for the reason that Mrs. Carr's alleged liabilshould the personal estate prove insufficient ity grows out of the exercise of a legal right, to pay the debts of such decedent. Rountree, while the principle for which appellant conAdm'x, v. Pursell, 11 Ind. App. 522, 537, 39 N. tends is effective to create liability against E, 747; Humphries, Adm'r, v. Davis, 100 Ind. persons "who shall unlawfully intermeddle 369; Moore v. Moore, 155 Ind. 261, 264, 57 with any of the property of a decedent." N. E. 242; Weakley v. Conradt, 56 Ind. 430. Section 2413, supra. The demurrer of apThe pleading avers that appellee Carr is the pellee Carr was properly sustained. sole heir of appellant's decedent. And, being 2. By proper garnishee proceedings in the the only heir, it follows that, at common law, court below appellee the National Fowler and by force of the statute, nothing to the Bank was made a garnishee defendant. It contrary appearing, she took the fee to the filed a demurrer to the complaint for want land. Rountree, Adm'x, V. Pursell, supra; of facts. This demurrer was also sustained Haugh v. Smelser, 31 Ind. App. 571, 66 to the first paragraph, and this ruling is N. E. 55, 506; Walker V. Diehl, 79 Ill. assigned as error. The purpose of a gar473. The authority of an administrator to nishee proceeding is to furnish a process for sell real estate to pay debts, in the absence the collection of the judgment rendered in the of a testamentary provision to that effect, main action. It is a mere incident of that is statutory, and can be legally exercised on- action, and depends upon it. Robbins v. ly by order of court. Moore v. Moore, supra; Alley, 38 Ind. 553. Without a valid judgFirst National Bank v. Hanna, 12 Ind. App. ment against the principal defendant thereof, 240, 245, 39 N. E. 1034; Walker v. Diehl, sup- garnishee proceedings based thereon must ra. At common law, an administrator has no fall. Matheney V. Earl, 75 Ind. 531; Debs dominion over the real estate of his decedent v. Dalton, 7 Ind. App. 84, 34 N. E. 236; Pick for any purpose. But, by statute (section 2485 v. Mutual Life Ins. Co., 94 Ill. App. 483; Burns' Ann, St. 1901), the common-law rule Hauptman & Co. v. Whittle, 85 Mo. App. has been modified so that now an adminis- 188; Brake on Attachment, $ 460. In the trator may sell decedent's real estate to make case at bar Mrs. Carr is the principal defendassets for the payment of debts, when there ant, and, as judgment on demurrer was renis an insufficient personal estate (section 2489 dered in her favor, the element essential to Burns' Ann. St. 1901), by first obtaining an sustain a valid judgment against the bank, as order from the court so to do. That pro- garnishee, is wanting. This being true, it folceeding being purely statutory, the procedure lows that the ruling on the bank's demurrer and rules of practice thus prescribed must is harmless. be followed. Seward v. Clark, 67 Ind. 289, Judgment affirmed. 294. It is the land, and not the proceeds derived from the sale thereof by an heir, which the statute authorizes an administrator

(39 Ind. App. 701) to convert into assets for the purpose of pay- CHICAGO, I. & L. RY. CO. v. PRITCHARD. ing debts of a decedent. As we have seen,

(No. 5,071.)2 Mrs. Carr took the title to the land, and

(Appellate Court of Indiana. Oct. 30, 1906.) for ought that appears took possession of the same and had the benefit of its use.

COURTS — APPELLATE JURISDICTION - TRANS

FER OF CAUSE. True, the land was chargeable with the Under the express provisions of Acts 1901, payment of the debts of appellant's decedent; p. 569, c. 247, § 15, where the six judges of but the fact that it was sold by Mrs. Carr

the Appellate Court are equally divided on the

determination of an appeal it will be transferto a third party made it none the less liable

red to the Supreme Court. to be taken by the administrator for that purpose. The purchaser acquired only the

Appeal from Circuit Court, Clay County ; rights of the heir, and was "bound to know

Presley 0. Colliver, Judge.

Action between Walter K. Pritchard, adthat until the estate is finally settled, the sale of the real estate may become necessary

ministrator, and the Chicago, Indianapolis & for the payment of debts.” Moore v. Moore,

Louisville Railway Company. From the supra. The sale of the land by Mrs. Carr

judgment, the railroad company appeals. cannot be regarded as anything more than

Transferred to Supreme Court. a sale of her interest or equity therein. The E. C. Field, G. A. Knight, and H. R. Kurrie, right of the administrator was in no way for appellant. S. A. Hays, Coffey & McGreg. abridged, nor is it shown that the adminis- or and C. E. Akers, for appellee.

* Transferred to Supreme Court, 79 N. E. 508. Rehearing denied, 81 N. E. 78

PER CURIAM. The six judges of the Ap facts. The findings say nothing about any pellate Court being equally divided upon the administrators having been appointed, but determination of the appeal in this cause, the does state that Frederick Bronnenberg died same is transferred to the Supreme Court, in June, 1901. Among the conclusions of law under section 15 of an act of the General it was stated that the claimant was not enAssembly entitled "An act concerning ap

titled to recover anything on his claim. peals" etc., approved March 12, 1901 (Acts Judgment was rendered July 8, 1905. The as1901, p. 569, c. 247).

signment of errors begins: "Eldon B. Pierse, Appellant, V. Estate of Frederick Bronnen

berg, Deceased, Appellee." The record was (38 Ind. App. 655)

filed in this court August, 1905, and appelPIERSE V. BRONNENBERG'S ESTATE. lant's brief filed November 6, 1905. On No(No. 5,831.)1

vember 21, 1905, the attorneys who represent(Appellate Court of Indiana. Division No. 1.

ed the estate and the administrators in the Oct. 23, 1906.)

trial court filed a brief on the merits of the APPEAL-ASSIGNMENT OF ERRORS-DEFECTS

case in this court as "attorneys for appellee." AMENDMENTS.

On August 31, 1906, appellee filed a motion to In a suit to establish a claim against the dismiss the appeal on the ground that the asestate of a decedent, one of the administrators filed an affidavit for a change of venue and both

signment of error does not contain the full administrators demurred to the claim. The

names of all the parties, and does not contain trial court made no finding relating to the ap or purport to contain the name of any appelpointment of administrators, and stated that

lee. On September 8, 1906, appellant filed a decedent died on a date specified, and that the claimant was not entitled to recover. The as

motion for leave to amend the assignment signment of errors began: "L. B. P. [claim of errors by making "Calvin A. Bronnenberg ant), Appellant, v. Estate of F. B., Deceased, and Ransom Bronnenberg, administrators of Appellee. The attorneys who represented the the estate of Frederick Bronnenberg, deceasestate and the administrators in the trial court filed, on appeal, a brief on the merits. Held,

ed," appellees. that appellant, on motion, was entitled to amend It is clear that the assignment of error is the assigument of errors by inserting the names defective. But it clearly appears from the of the administrators.

record that there were administrators of the [Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, 8 1359.)

estate, and, representing the estate through

their attorneys, they have entered their apAppeal from Circuit Court, Madison Coun pearance in this court, and filed a brief upon ty; Vinson Carter, Special Judge.

the merits of the case. Appellant and the esProceeding by Eldon B. Pierse to establish tate only will be affected by either an afa claim against the estate of Frederick Bron firmance or a reversal of the judgment. If nenberg, deceased. There was a judgment the names of the administrators are put in dismissing the claim, and claimant appeals. the assignment as representing the estate, On motion to dismiss, and for leave to amend an affirmance or a reversal of the judgment the assignment of errors. Motion to dismiss will have the same effect it would have withoverruled, and motion to amend assignment out such amendment. We think the reasonof errors granted.

ing in McConahey's Estate v. Foster, 21 Ind. William A. Kittinger and William S. Diven,

App. 416, 52 N. E. 619, and cases there cited, for appellant. Bagot & Bagot, for appellee.

is applicable to the question here presented,

and upon the authority of that case the moROBINSON, C. J. The record shows that

tion to dismiss is overruled, and the motion appellant filed in the office of the clerk of

to amend the assignment of errors is granted. the Madison circuit court his claim against the estate of Frederick Bronnenberg, deceased. The claim not having been allowed by

(38 Ind. App. 661) the duly qualified and acting administrators

CROMER et al. v. CITY OF LOGANSPORT. of the estate, the same was placed on the

(No. 6,055.) appearance docket. Afterwards Calvin A. (Appellate Court of Indiana, Division No. 1. Bronnenberg, as one of the administrators of

Oct. 24, 1906.) the estate, filed an affidavit for a change of

1. MUNICIPAL CORPORATIONS - STREET IMvenue from the county and the cause was

PROVEMENTS_DAMAGES-SURFACE WATER.

A city is liable for damages arising from sent to Delaware county. In the Delaware

its failure to provide an outlet for surface wacircuit court the administrators, Calvin and ter accumulated through its street improvements Ransom Bronnenberg, demurred to the claim. from a large extent of territory and brought 10 The cause seems to have been carried along

one locality, to which without such improve

ments it would not have come. on the docket as "Eldon B. Pierse v. Estate

[Ed. Note.--For cases in point, see vol. 36, of Frederick Bronnenberg.” By agreement Cent. Dig. Municipal Corporations, g 1785.] the cause was certified back to the Madison

2. INJUNCTION-NATURE AND SCOPE-RECURcircuit court, and Calvin A. Bronnenberg, as RING INJURY. one of the administrators, made affidavit for

Where plaintiff's property was damaged change of venue from the judge, and a special

during every recurring ordinary rainfall by sur

face water accumulated by defendant's street judge was appointed to try the cause. Upon

improvements for which no proper outlet had a trial the court made a special finding of the been provided, plaintiff was entitled to an in

* Judgment affirmed, 79 N. E. 419. On rehearing, 81 N. E. 739. Rehearing denied, 82 N. E. 126. Transfer to Supreme Court denied.

junction to restrain the future recurrence of appellants, north of the portion thereof on such injury.

which their said business was conducted. [Ed. Note. For cases in point, see vol. 27,

It was shown that Wilkinson street ex. Cent. Dig. Injunction, $ 101.]

tended along the east side of said real estate, 3. DAMAGES-DUTY OF PERSON INJURED TO PREVENT DAMAGE-MITIGATION-CONTRIBU

crossing West Broadway street; that 20 TORY NEGLIGENCE.

years or more before the time of the trial Where plaintiff's property was injured by the city established grades of these and a surface water negligently collected and permitted

number of other streets named and intersectto flow on plaintiff's property by defendant city, the fact that plaintiff's own negligence ag

ing alleys, east and north of said real estate, gravated the injury sustained was not a de and the same were improved from year to fense to his action, but was available only in year, by which grades and improvements the mitigation of damages.

water was caused to flow from the streets 4. INJUNCTION-NUISANCE -- REMEDYING DE

until it gathered in a body at the corner of FECTS.

Where a city failed to provide an outlet Wilkinson and West Broadway streets, and for surface water accumulated through its thence it flowed west along West Broadway, street improvements from a large extent of ter

emptying into the gravel pit, the grade and ritory, and in a suit for an injunction the court held that complainant was entitled to relief, it improvement of the last-named street west of was improper to give the city eight months Wilkinson street being such as to cause the within which to remedy the defect.

water so to flow and empty without injury [Ed. Note. For cases in point, see vol. 15, to the property of the appellants, and the Cent. Dig. Damages, SS 124-126.]

water continued so to flow until the winter Appeal from Circuit Court, Cass County; or spring of 1897 or 1898. It was shown John S. Lairy, Judge.

that November 18, 1896, the common counAction by Robert Cromer and others cil of the city so changed the grade of West against the city of Logansport. From a Broadway street from Wilkinson street as to judgment in favor of plaintiffs for less than cause the flow east from the railway to the the relief demanded, plaintiffs appeal. street last named and to prevent the flow Transferred from the Supreme Court. Re westward of the water accumulating at the versed and remanded with instructions. crossing of West Broadway and Wilkinson Frank V. Guthrie and Nelson, Myers &

streets, and about five or six years before the Yarlott, for appellants. J. W. McGreevy and

trial the city improved the street, sidewalk, McConnell, Jenkines, Jenkines & Stuart, for

and gutters to conform to the grade thus appellee.

changed, by raising the same from Wilkinson

street westward, and thereby entirely stopped BLACK, J. The appellants, as owners of

the flow westward of the water so accumulat. certain real estate in the city of Logansport,

ing at said crossing. The proceedings of sued the appellee to recover damages for in

the common council were set out, showing jury caused by water which the city by its its action in this behalf; and it was found grading and construction of streets brought that the city, at the time when it changed to said real estate, for which it failed to the grade of West Broadway west of Wilkinprovide an outlet, whereby it overflowed the

son street, did not, nor did it afterward. real estate of the appellants, and also to ob

make any provision for the disposition of the tain an injunction to prevent the continued water which accumulated at the corner of recurrence of such injury; the complaint be

those two streets, and provided no outlet for ing filed September 5, 1903. There were two its discharge, and never assessed or tenderparagraphs of complaint and an answer in ed to the appellants or their grantors any denial. The court rendered a special finding;

damages by reason of the change in the grade the appellants excepting to the conclusions of and the flow of the water, nor took any steps law. The court found, in substance, that to protect the premises of the appellants from the appellants since March 8, 1897, had been the flow of water; "and it is found that the the owners in fee of the real estate in ques action and proceedings of said city were tion, upon which they had erected two build wrongful.” ings in which for the past six years they had It was found that, after the improvement conducted the business of manufacturing,

had been made by the city in raising the tiling, and the storage and sale of cement, grade west of Wilkinson street, on West hay, etc., the business being owned by the

Broadway, ordinary rains of one or two appellants and conducted by one of them as hours duration caused great accumulation of manager; that the real estate is a triangular water at West Broadway and Wilkinson piece of ground, the southwest line of which streets, so that the streets, gutters, and sideis 4,800 feet in length, curving with the right walks were overflowed, the water sometimes of way of a railroad named, the north line standing a foot deep therein; and the water extending east and west 420 feet, and the thus accumulating flowed south on Wilkinson east line extending north and south 256 feet; street for half a block to an alley which exthat on and prior to November 18, 1896, there tended westward from that street across the was a large gravel pit in the western por real estate of the appellants, and thence flowtion of the real estate, extending into West ed with great force westward through the Broadway street, a street which extended alley and on and over the premises of the east and west across the real estate of the appellants, spreading over the same and flow.

ing into the buildings thereon, south of the The court stated, as its conclusions of law alley, carrying débris and sediment of the upon the foregoing facts, that “the law is streets thereon "and causing considerable and with the plaintiffs, and I find for the plainsevere injury and damage to the plaintiffs' tiffs on the first paragraph of complaint, and premises and merchandise kept and used in that their damages be assessed at the sum the business. It is found that this injury and of $100, and that the defendant, the city of damage is a recurring one and liable to occur Logansport, should be perpetually enjoined after ordinary rains of one hour or two hours from permitting the water to flow through duration, and the plaintiffs have frequently said alley on the lands of the plaintiffs." complained to the mayor and other officers of Afterwards the court stated, as "amended the city of the injury thus sustained, and were conclusions of law," the following: "The told in response that the city could do nothing, court finds as the law that all the merchanand were refused any redress.” It was found dise injured and damaged as herein found that in the year 1897 the appellants suffered from the year 1898 to the year 1903, both inclu"injury and damage to the stock of merchan sive, was injured and damaged by reason of dise by reason of the flow of water herein the plaintiffs placing said merchandise upon found, in the sum of $100;" that in the year the ground floor, at the place where the plain1898 they suffered “injury to their personal tiffs knew before placing the same that the property in the sum of $150, and in the year merchandise would be damaged and destroy1899, from like cause, in the sum of $100, ed, if allowed to remain where it was placed; and in the year 1900, from like cause, $200, that plaintiffs failed to use reasonable care, and in 1901, from like cause, $150, and in under all the circumstances, to prevent said the year 1902, from like cause, $250, and in injury; and that his subsequent negligence the year 1903, from like cause, $100, and and failure to use such care became the proxthat the cement damaged was in sacks and imate cause of the injury." This expression placed on the cement floor, which was on a of afterthought by the court, so far as it level with the surface of plaintiffs' lot; that contained statements of sufficient definiteness the cement was so placed by the plaintiffs and directness, constituted a further finding knowing that it would be injured if permitted of matter of fact, rather than conclusions of to remain there, and that it could have been law. The real and effectual conclusions of removed and damages avoided."

law were that the plaintiffs under their first It was further found that the lands of the paragraph of complaint were entitled to an appellants, at the point where the alley dis injunction and were entitled to recover damcharges the water thereon, is below the grade ages in the sum of $100, the amount of the of Wilkinson street, and the city has failed damage to merchandise in the year 1897, thus to furnish any outlet for the water so dis omitting any damages for the subsequent charged; that the grade of the railroad where years, in each of which damage in amount it crosses Wilkinson street (at the south end stated in the finding was suffered the same in of the land of the appellants) is 22 inches kind as that found to have been suffered in higher than the grade of that street at the 1897. alley where the water is discharged upon the At the conclusion of the evidence, and beproperty of the appellants; that there is no fore the rendition of the special finding, the culvert under the railroad on that street for appellants moved in writing to be permitted the purpose of affording an outlet, and before to amend the second paragraph of their comthe water could seek an outlet on that street plaint, by inserting therein, at what place it would be standing 22 inches above the was not stated, the words, "without fault or grade of that street at the alley where the negligence on the part of the plaintiffs." water is conducted upon the property of the The first paragraph contained a denial of appellants; that, at the point where the alley negligence on the part of the appellants, but discharges the water upon the lands of the such an averment was not contained in appellants, they are practically on a level the second paragraph. The court maniwith the alley, and thence they slope grad festly regarded and treated the first paraually downward to the southwest to the rail graph on which it found for the

aproad right of way, and the railroad company pellants as sufficient for the recovery of 30 years before the trial had constructed a damages for all the injuries found which culvert under its tracks, on the southwest were not found to be attributable to contriside of the lands of the appellants, for its butory fault of the appellants. In its findown use, and all the water discharged from ing it treated the first paragraph as being as said alley would pass over and across said available in this regard as the second paralands before it would pass through said cul graph would have been if the amendment vert; that the railroad embankment forming were permitted. So that aside from the conthe southwest boundary line of the property sideration of the court's large discretion as of the appellants is considerably higher than to amendments, the appellants practically said lands; that in recent years this culvert suffered no detriment from the overruling of was stopped up by reason of the widening of this motion. its grade and roadbed by the railroad com As to the liability of the city for damages pany, so that the water is impeded in flowing arising from its failure to provide an outlet ihrough.

for the surface water accumulated through

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