CHAPTER 903
NEW TRIALS AND WRITS OF ERROR

Table of Contents

Sec. 52-270. Causes for which new trials may be granted.
Secs. 52-270a and 52-271. Period in which new trial may be brought; affidavit evidence of want of notice. New trial in justice suit where judgment rendered prior to January 1, 1961.
Sec. 52-272. Writs of error in matters of law only. Return days.
Sec. 52-273. Writ of error; limitations.
Sec. 52-274. Writs of error from summary process judgments.
Sec. 52-275. Allowance and signing of writs of error.
Sec. 52-276. Service and return of writs of error.
Sec. 52-277. Judgment on affirmance or withdrawal of writ of error.
Sec. 52-278. Execution on judgment while writ of error pending.


Sec. 52-270. Causes for which new trials may be granted. (a) The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.
(b) An affidavit signed by any party or his or her attorney shall be presumptive evidence of want of actual notice.
(1949 Rev., 8013; 1959, P.A. 28, S. 120; P.A. 74-183, S. 95, 291; P.A. 76-93, S. 1, 4; 76-436, S. 486, 681; P.A. 82- 160, S. 142.)
History: 1959 act substituted circuit court for municipal court, which was abolished; P.A. 74-183 removed circuit court from purview of section reflecting transfer of its functions in reorganization of judicial system, effective December 31, 1974; P.A. 76-93 authorized grant of new trial for want of actual notice to plaintiff of entry of a nonsuit for failure to appear or dismissal for failure to prosecute with reasonable diligence; P.A. 76-436 removed court of common pleas from purview of section, reflecting transfer of all trial jurisdiction to superior court, and authorized granting of new trial in cases where parties or their counsel have not adequately protected their rights during the original trial of a cause, effective July 1, 1978; P.A. 82-160 replaced "cause" and "suit" with "action", designated the existing section as Subsec. (a) and added Subsec. (b) concerning evidence of want of actual notice which was formerly part of Sec. 52-270a.
See Sec. 52-268 re new trial when judge, stenographer or court reporter dies or is incapacitated and review of errors is not possible.
In general. History of power to grant. 65 C. 278; 94 C. 505. Wholly governed by statute; procedure and burden of proof. 75 C. 576; 76 C. 538. Petition for, is part of original proceeding. 75 C. 576. Petition for injunction against collection of judgment not petition for new trial; 44 C. 193; when it lies; 108 C. 17. Rules same in civil and criminal action. 65 C. 278; 69 C. 186; 72 C. 109; 74 C. 638; 79 C. 481. Not to be readily granted; but if cause can be shown under petition, demurrer does not lie. 72 C. 270. Harmless or technical error, or one where party himself is at fault not ground for. 11 C. 358; 18 C. 320; 19 C. 373; 21 C. 236; 31 C. 383; 72 C. 109; 80 C. 314; Error should not be granted where matter in dispute is trivial; 17 C. 486; 29 C. 123; 39 C. 306; or where lapse of time makes new trial ineffectual. 5 D. 335. Action of judge suo motu harmless where motion is later made. 83 C. 445. Discretion of court, and review in general; 2 R. 80; 12 C. 226; 51 C. 395; 72 C. 109; 80 C. 314; 84 C. 518; 85 C. 611; 87 C. 363; discretion means a legal discretion. 12 C. 154; 17 C. 539. "The usual rules" are rules of law and decision may be reviewed. 58 C. 67. New trials may be granted nisi. 9 C. 371; 12 C. 486; 30 C. 343; 31 C. 62. Petition may be brought at any time within three years, though judgment was by default. 93 C. 160. Trial court may grant for erroneous instructions. 94 C. 443. Discretion of court and its review. 94 C. 506. Affords remedy to party aggrieved by default judgment. 97 C. 123. Petition for new trial not independent proceeding but ancillary to original action. 112 C. 591. After expiration of term during which action was withdrawn, remedy of plaintiff if any would be by petition for new trial or proceeding in equity, but not by motion to restore. 123 C. 172. Insufficiency of declaration held no ground; 5 D. 230; 6 C. 83; 8 C. 242; nor error in pleading; 3 C. 294; but where administrator erred in pleading, beneficiaries were granted new trial; 73 C. 404; if party, having opportunity to amend, neglects to do so, no new trial. 83 C. 474; 85 C. 595. Where party had no notice of pendency of action. 46 C. 604; 55 C. 182. Does not lie where judge was exercising a discretion. 36 C. 460. Misconduct of juror. 50 C. 307; 72 C. 109; 80 C. 314; 84 C. 518; 87 C. 363; 90 C. 79. Equitable grounds; where application is to be made. 71 C. 432. Death of judge before appeal can be perfected. 76 C. 538; 87 C. 608; But see section 52-268. If under his petition plaintiff can prove a reasonable cause, demurrer does not lie. 72 C. 270. Since 1893, "other reasonable cause" includes a verdict against the evidence. 64 C. 61. Improper argument of counsel; 72 C. 202; id., 252; 74 C. 638; id., 700; 79 C. 477; 83 C. 160; id., 183; id., 652; 86 C. 100; improper conduct of counsel. 83 C. 702. Lack of opportunity to make, or prevention from making, defense. 93 C. 160. Existence of good defense must be proved to obtain new trial because of lack of opportunity to present it. 111 C. 103. Champertous agreement not a ground for new trial when fraudulent testimony not given. 100 C. 110. Death of stenographer, if it prevents raising questions on appeal, is ground. 105 C. 719. Allowing exhibits, prejudicial to party, wrongfully to be taken into jury room. 109 C. 726. Perjury on the part of the plaintiff should be raised by defendant by motion for new trial. Id., 328. Review of scope of statute. 105 C. 713. Misconduct on part of trial judge may be sufficient "reasonable cause." 114 C. 736. Must prove that mispleading came about through fraud, accident or mistake. 116 C. 699. Is an additional safeguard to prevent injustice where remedy by appeal does not lie, or where appeal is prevented by fraud, accident or mistake. 137 C. 58. Other reasonable cause includes cause for which equity could grant a new trial, such as, fraud, accident or mistake. 140 C. 464; 144 C. 389. Insanity which deprives appellant of right to consult with counsel on appeal, held not to constitute grounds for new trial under this section. 145 C. 11. Discretion of court to grant a new trial is not an absolute but a legal one; can be set aside for misconception as to limits of its power, error in its preliminary proceedings or for a clear abuse of its discretion. 146 C. 608. Where a judgment has been rendered after a default and there was no fraud, unfair dealing or misconduct on the part of the defendant leading to the entry of the default judgment, this section would support the exercise of discretion to grant a new trial only if there had been, despite the exercise of due diligence, no reasonable opportunity to defend and a just defense in whole or in part existed. 150 C. 188. Cited. 115 C. 42; 118 C. 230; Id., 294; 119 C. 220; 121 C. 379; 124 C. 644; 134 C. 483; 136 C. 364; 141 C. 202; id., 214; 142 C. 27; Id., 676; 151 C. 716; 154 C. 294, 297; Id., 314, 320. See notes to section 52-265. Cited. 156 C. 72. Cited. 162 C. 318; 163 C. 166. Cited. 179 C. 246, 249; Id., 415, 420; 181 C. 58, 59. Cited. 185 C. 495, 500. Cited. 188 C. 281. Cited. 189 C. 573, 575−577. Cited. 190 C. 667, 668; Id., 707, 712; Id., 774, 782. Cited. 194 C. 510, 521. Cited. 202 C. 561, 565. Cited. 209 C. 143, 144, 147, 162. Cited. 212 C. 387, 390. Cited. 223 C. 834, 843. Cited. 229 C. 397, 425. Cited. 231 C. 745, 756. Cited. 237 C. 576. Cited. 242 C. 125. Appellate court erred in concluding trial court had abused its discretion in denying a requested continuance and a motion for a mistrial; judgment of appellate court in State v. Brown, 41 CA 317 et seq. reversed. Id., 445.
Newly discovered evidence. New trial not granted if evidence could have been secured on former trial with reasonable diligence; K. 282; 18 C. 493; 20 C. 310; 43 C. 191; 81 C. 325; 86 C. 684; 89 C. 401; 96 C. 254; 111 C. 115; nor if it be merely cumulative; 20 C. 310; 43 C. 193; 68 C. 50; 77 C. 15; 83 C. 477; 106 C. 6; 138 C. 717; 139 C. 690; cumulative defined; 96 C. 258; nor for mere afterthought of witness; 45 C. 266; 75 C. 576; 77 C. 15; 96 C. 254; nor if it be merely for impeachment; 32 C. 369; 58 C. 60; nor where result would not be changed. 68 C. 50; 80 C. 157; 86 C. 684; 89 C. 401; 91 C. 23; 96 C. 258. New evidence must be sufficient to turn scale, must not be cumulative, and ordinarily must do more than impeach the reputation of a witness. 94 C. 142. Cases where evidence held insufficient; 45 C. 266; held sufficient; 53 C. 360. Such evidence cannot be proved by mere ex parte affidavit. 45 C. 266. Rules same in criminal, even capital, case. 48 C. 92. Discretion of court. 75 C. 576; 77 C. 15; 83 C. 477; 86 C. 688; 89 C. 401; 91 C. 23; 96 C. 258. Pleading. 43 C. 188; 75 C. 576; 80 C. 157; 81 C. 325. Amendment of petition. 83 C. 477; 91 C. 23. Making proceedings on former trial part of petition. 75 C. 31; 86 C. 684. Applies, by analogy, to motion before compensation commissioner to open and modify his award. 106 C. 5. In such a proceeding diligence is not as essential as in a petition for a new trial in a court. Id., 107 C. 167. Not abuse of court's discretion to require plaintiff first to show that evidence as not discovered or discoverable by due diligence prior to or during trial of original action. 124 C. 670. Conditions under which new trial should or may be granted for false testimony by material witness. 131 C. 682; 146 C. 149. Absence of allegation that newly discovered evidence will probably produce a different result makes petition demurrable. 137 C. 642. New trial not ordinarily granted because of discovery of additional impeaching or discrediting testimony. 139 C. 249; 152 C. 512. Evidence not newly discovered which related to actions of accused himself. Id., 317. Where claimed newly discovered evidence would merely affect credibility of a witness, it is not ground for a new trial unless it is reasonably probable that on a new trial there would be a different result. 147 C. 566. To grant a new trial the evidence must be newly discovered, material to the issue on a new trial and such that it could not have been discovered and produced on the former trial by the exercise of due diligence. 152 C. 511. Evidence which is cumulative only and designed to attack the credibility of a witness is not ordinarily a ground for a new trial and is never such a ground unless it appears reasonably certain that injustice has been done and that the result of a new trial will probably be different. Id., 512. Fair opportunity to appeal is a "reasonable cause" for a new trial, but late notification of judgment does not prevent appeal and therefore is not cause for a new trial. Petition for new trial is not a substitute for or alternative to ordinary appeal. 164 C. 212. Cited. 168 C. 541. Failure of state to comply with mailing provision of Sec. 19-483(b) did not require granting of new trial under this section. 172 C. 16, 17. Cited. Id. Cited. 173 C. 334, 335. Distinctions between a petition and a motion for a new trial examined. 180 C. 141, 143.
Cited. 1 CA 298, 300. Cited. 2 CA 355, 361. Cited. 3 CA 235, 237. Cited. Id., 322, 328. Cited. Id., 633. Cited. 10 CA 503, 515. Cited. 14 CA 88, 100. Cited. 15 CA 222, 250. Cited. Id., 312, 315, 317. Cited. Id., 367, 369. Cited. Id., 502. Cited. 18 CA 166, 171. Cited. 19 CA 76, 78, 80, 83−85. Cited. 25 CA 318, 331. Cited. 29 CA 722, 723. Cited. 32 CA 1, 4. Cited. 33 CA 122, 123. Cited. 34 CA 103, 109. Cited. 36 CA 59, 62.
When petition for new trial is fatally defective. 1 CS 83. As there is no specific method of petitioning for a new trial, a demurrer is within the intent of the statute. 14 CS 102. Petition is the established procedure for claiming new trial. Id., 505. Cited. 17 CS 325. Under a proper showing, the loss of all exhibits might be a "reasonable cause" for the granting of a new trial. 20 CS 469. New trial denied as claimed new evidence existed at date of original trial, and would probably not change the result if new trial were granted. 31 CS 296. Cited. 32 CS 349. Actual knowledge of pendency of action which may be inferred from personal service precludes granting relief from default judgment. 33 CS 572. Cited. 36 CS 53, 54. Cited. 37 CS 645, 647; Id., 891, 895. Statute of limitations did not run since plaintiff was originally barred from action under this statute by Sec. 46b-172 which barrier was subsequently removed when it was declared unconstitutional. 38 CS 534, 535. Cited. Id., 537; Id., 718, 719. Cited. 41 CS 454, 456.
Motion for new trial not equivalent to petition for new trial. 3 Conn. Cir. Ct. 387. Defendant's remembrance after trial of previously forgotten facts does not constitute newly discovered evidence. 3 Conn. Cir. Ct. 651, 654. Lack of diligence is shown by a failure to make inquiry of persons who are likely to know the facts in question. Id. Where plaintiff's motion to open judgment on default was denied, he was not precluded from petitioning for new trial. Determination of motion was not res judicata. 4 Conn. Cir. Ct. 201. Cited. 6 Conn. Cir. Ct. 531.
Subsec. (a):
Cited. 202 C. 429, 431. Cited. Id., 561−564. Cited. 209 C. 143, 144. Cited. 230 C. 427, 434.
Cited. 19 CA 76, 78. Cited. 36 CA 59.

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Secs. 52-270a and 52-271. Period in which new trial may be brought; affidavit evidence of want of notice. New trial in justice suit where judgment rendered prior to January 1, 1961. Sections 52-270a and 52-271 are repealed.
(1949 Rev., S. 8014; 1959, P.A. 28, S. 203; P.A. 76-93, S. 2−4; 76-436, S. 141, 681; P.A. 78-280, S. 1, 127; P.A. 82- 160, S. 259.)
See Sec. 52-270 re causes for which new trials may be granted.

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Sec. 52-272. Writs of error in matters of law only. Return days. Writs of error for errors in matters of law only may be brought from the judgments of the Superior Court to the Supreme Court and shall be made returnable to the next return day or next but one to which they can be made returnable. The return days of the Supreme Court shall be the first Tuesday of each month except the months of July, August and September.
(1949 Rev., S. 8015; March, 1958, P.A. 27, S. 66; 1959, P.A. 28, S. 121; P.A. 74-183, S. 96, 291.)
History: 1959 act deleted reference to writs brought from judgments of municipal courts, which were abolished; P.A. 74-183 removed judgments of court of common pleas from purview of section, reflecting revision of its functions in reorganization of judicial system, effective December 31, 1974.
See Sec. 52-264 re authority of Supreme Court judges to make rules for appeals and writs of error.
Writ of error defined. 59 C. 497. Writ of error cannot be brought on interlocutory judgments. 1 D. 27; 21 C. 284; 24 C. 390; 69 C. 601; 116 C. 24. If erroneous, they can be reversed by writ of error on the final judgment when rendered. 28 C. 465. Error lies from order erasing cause from docket; 34 C. 185; but not from refusing to make such an order. 35 C. 222. A writ of error is not barred by right of appeal. 6 C. 149. Party may sustain writ of error to reverse a void judgment in his own favor. 28 C. 444. But not unless he is injured by it. 16 C. 445. Writs of error were supplanted by motions for new trial, in cases where evidence has been wrongly admitted or rejected, or a wrong charge given. 26 C. 581. On a writ of error the court had not the same discretion as on a motion for a new trial. 7 C. 132; 9 C. 344. No error is predicable on the exercise of judicial discretion. 36 C. 460. "Snap judgments." 16 C. 44. Admission of improper evidence not affecting decree, no ground of error. 15 C. 205; 24 C. 619. Presumptions are in favor of judgment. 3 D. 469; 25 C. 602. Record cannot be contradicted. 5 C. 544; 16 C. 42. Waiver of errors. 5 C. 543. Writ of error lies from a formal judgment awarding a writ of peremptory mandamus. 44 C. 390. Lies upon an adjudication of contempt of court, when. 44 C. 409. Does not lie from judgment denying a motion to set aside a nonsuit. 46 C. 465. Court may take notice of errors even when not assigned. 47 C. 582. Writ does not operate as a supersedeas of execution, when. 55 C. 156. Must be brought in the county or district in which the case was decided. 59 C. 496. Writ of error only to be taken from final judgment. 69 C. 601; 116 C. 24. Reaches only errors apparent on record. 72 C. 611; 86 C. 229; 87 C. 608; 116 C. 24. Proper method to review judgment of summary process in city court. 79 C. 310; 86 C. 32; 92 C. 150; 95 C. 69; 104 C. 115. Includes equitable proceedings. 83 C. 696. Cannot take place of appeal defeated by death of judge. 87 C. 608. See section 52-268. History of this procedure. 85 C. 622. Does not lie from decision of judge. 88 C. 147. How far replaced by appeal. 69 C. 483; 83 C. 690. Writ proper method to review judgment in contempt; its nature. 84 C. 89. Errors must be specifically assigned. 91 C. 671. Certification of evidence is improper; function of bill of exceptions; 94 C. 452; 96 C. 403; 104 C. 115; 108 C. 144; 109 C. 168. Judgment where case reversed but only one result legally possible on facts stated in bill. 96 C. 403. Effect of reversal on writ of error. 39 C. 308; 85 C. 271. Proper to annex to, or incorporate in, writ of error copy of record of trial court; but permissible to refer to it and later file it as an exhibit. 104 C. 116. Bill of exceptions is similar in function to a finding in an appeal. Id., 117. Limitations of use of bill of exceptions. 108 C. 144. Not a proper remedy for review of rulings of trial court or charge to jury except in actions of summary process. Id.; 109 C. 168. Writ on questions of law reaches only errors of record. 72 C. 611. Recognizance. 75 C. 650. Lies only upon judgment and from superior court. 69 C. 601. Is not coextensive with appeal; applies to equity as well as law; error must appear of record, and be involved in judgment. 83 C. 690. Begins independent action; service and return. 85 C. 374. But not a proceeding independent of original action in the broad sense. 119 C. 220. History and nature; lies when; to what term to be taken. 85 C. 618. Distinction between errors of law and fact. 86 C. 229. Runs to court, not to judge; election contest, record how made up and questions raised. 88 C. 141. A former statute permitted writs of error for errors in fact to be brought to superior court. 74 C. 453; 86 C. 234. Lies by state in criminal case. 118 C. 373. Formerly writs of error from city courts were returnable to the supreme court. 134 C. 659. Not affected by former section 51-38. Id., 662. Cited. 137 C. 638; 144 C. 389. See notes to sections 47a-35, 52-46. Section did not abolish writ of error from court of common pleas. 173 C. 104. Cited. 194 C. 43, 45, 48. Cited. 220 C. 162, 165. Cited. 225 C. 391.
Cited. 25 CA 734, 736. Cited. 43 CA 851. Cited. 45 CA 235.
Subsec. (a):
Cited. 8 CA 407, 421.

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Sec. 52-273. Writ of error; limitations. No writ of error may be brought in any civil or criminal proceeding, unless allowed and signed within two weeks after the rendition of the judgment or decree complained of. No writ of error may be brought in any civil or criminal proceeding for the correction of any error which might have been reviewed by process of appeal.
(1949 Rev., S. 8016; P.A. 82-160, S. 143.)
History: P.A. 82-160 rephrased the section.
Formerly: Limitation of two weeks applies to writ of error in summary process. 137 C. 635. Cited. 185 C. 118, 119. Cited. 220 C. 162, 163. Cited. 223 C. 411, 413, 414. Cited. 225 C. 391. Where writ of error may not be brought under this section, court discussed alternative accesses to review. 229 C. 178−183, 185. In habeas corpus proceedings it was constitutional for general assembly to limit right to obtain appellate review through writ of error under this section by excluding cases "which might have been reviewed by process of appeal". Id., 193−195, 197, 202. Noncompliance with two-week limitation period of section does not deprive court of subject matter jurisdiction over a writ of error. 241 C. 569. Cited. 242 C. 689.
Cited. 19 CA 686, 693. Cited. 35 CA 527, 529. There being no right of appeal in small claims cases, writ of error was proper. 49 CA 198.

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Sec. 52-274. Writs of error from summary process judgments. Section 52-274 is repealed.
(1949 Rev., S. 8017; March, 1958, P.A. 27, S. 67; 1959, P.A. 28, S. 204.)

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Sec. 52-275. Allowance and signing of writs of error. All writs of error shall be allowed and signed by a judge of the Superior Court or by the clerk of the court; and the authority signing any such writ shall, before its issue, take good and sufficient bond with surety that the plaintiff in error shall prosecute his suit to effect, and answer all damages if he fails to make his plea good.
(1949 Rev., S. 8018; P.A. 74-183, S. 97, 291; P.A. 76-436, S. 487, 681.)
History: P.A. 74-183 removed judges of court of common pleas from purview of section, reflecting reorganization of judicial system effective December 31, 1974; P.A. 76-436 reworded section to reflect transfer of all trial jurisdiction to superior court, omitting reference to signing of writ by judge or clerk of court other than superior court, effective July 1, 1978.
Bond filed at opening of the court is not sufficient. 41 C. 190. Recognizance sufficient; how noted on writ. 75 C. 651. Attorney for plaintiff may be recognized by authority signing writ for costs of prosecution. 108 C. 93. Cited. 169 C. 267, 280. Cited. 207 C. 547, 550, 552, 554. Cited. 220 C. 162, 163. Cited. 225 C. 391.

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Sec. 52-276. Service and return of writs of error. Writs of error shall be served and returned as other civil process, except that, if any defendant in error lives out of the state, it shall be sufficient service upon him to leave a true and attested copy of the writ with, or at the usual place of abode of, the attorney who appeared for him in the original cause. On writs of error brought to reverse a decree in favor of several petitioners for a highway, it shall be sufficient to make service by reading such writ to, or leaving an attested copy thereof with, any one of the first three signing petitioners, without any further service on any other defendant in error.
(1949 Rev., S. 8019.)
Such service must be made on each defendant. 3 C. 259. Bonds taken after allowance of writ. 7 C. 142. How served and returned to supreme court. 85 C. 375; id., 626. Service may be accepted. 104 C. 116. Permissible, but not good practice to refer to record of trial court in writ and afterwards file record as exhibit in court above. Id. Cited. 114 C. 584; 118 C. 384. Cited. 225 C. 391.

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Sec. 52-277. Judgment on affirmance or withdrawal of writ of error. When a judgment or decree is affirmed on a writ of error or if the plaintiff in error suffers a nonsuit or withdraws the cause, the court having cognizance of the same shall render judgment in favor of the defendant in error to recover his costs.
(1949 Rev., S. 8020.)
Cited. 225 C. 391.

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Sec. 52-278. Execution on judgment while writ of error pending. If, on application, during the pendency of any writ of error, by the defendant in error, to a judge of the Supreme Court and on reasonable notice of the application to the plaintiff in error, it appears to the judge that there is no reasonable or probable cause for the allowance of the writ, he may order, upon such terms as he considers reasonable, that the levy of the execution on the judgment upon which the writ was brought shall not be further suspended by reason of the pendency of the writ.
(1949 Rev., S. 8021; P.A. 82-160, S. 144.)
History: P.A. 82-160 rephrased the section.
Writ not to operate as supersedeas, when. 55 C. 156. Effects stay of execution unless defendant in error obtains order under this section. 116 C. 25. Writ of error not barred because execution issued and satisfied on original judgment. 119 C. 222. Cited. 225 C. 391. Cited. 234 C. 783, 795.
Cited. 42 CS 241, 252.


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