[A.C. NO. 6313 : September 7, 2006]
CATHERINE JOIE P. VITUG, Complainant, v. ATTY. DIOSDADO M. RONGCAL, Respondent.
D E C I S I O N
The allegations raised in this complaint for disbarment are more sordid, if not tawdry, from the usual. As such, close scrutiny of these claims is called for. Disbarment and suspension of a lawyer, being the most severe forms of disciplinary sanction, should be imposed with great caution and only in those cases where the misconduct of the lawyer as an officer of the court and a member of the bar is established by clear, convincing and satisfactory proof.1
Under consideration is the administrative complaint for disbarment filed by Catherine Joie P. Vitug (complainant) against Atty. Diosdado M. Rongcal (respondent). A classic case of "he said, she said," the parties' conflicting versions of the facts as culled from the records are hereinafter presented.
Complainant narrates that she and respondent met sometime in December 2000 when she was looking for a lawyer to assist her in suing Arnulfo Aquino ("Aquino"), the biological father of her minor daughter, for support. Her former classmate who was then a Barangay Secretary referred her to respondent. After several meetings with complainant, respondent sent a demand letter2 in her behalf to Aquino wherein he asked for the continuance of the monthly child support Aquino used to give, plus no less than
P300,000.00 for the surgical operation their daughter would need for her congenital heart ailment.
At around this point, by complainant's own admission, she and respondent started having a sexual relationship. She narrates that this twist in the events began after respondent started calling on her shortly after he had sent the demand letter in her behalf. Respondent allegedly started courting her, giving her financial aid. Soon he had progressed to making sexual advances towards complainant, to the accompaniment of sweet inducements such as the promise of a job, financial security for her daughter, and his services as counsel for the prospective claim for support against Aquino. Complainant acknowledges that she succumbed to these advances, assured by respondent's claim that the lawyer was free to marry her, as his own marriage had already been annulled.
On 9 February 2001, respondent allegedly convinced complainant to sign an Affidavit of Disclaimer3 ("Affidavit") categorically stating that even as Aquino was denoted as the father in the birth certificate4 of her daughter, he was, in truth, not the real father. She was not allowed to read the contents of the Affidavit, she claims. Respondent supposedly assured her that the document meant nothing, necessary as it was the only way that Aquino would agree to give her daughter medical and educational support. Respondent purportedly assured complainant that despite the Affidavit, she could still pursue a case against Aquino in the future because the Affidavit is not a public document. Because she completely trusted him at this point, she signed the document "without even taking a glance at it."5
On 14 February 2001, respondent allegedly advised complainant that Aquino gave him
P150,000.00 cash and P58,000.00 in two (2) postdated checks to answer for the medical expenses of her daughter. Instead of turning them over to her, respondent handed her his personal check6 in the amount of P150,000.00 and promised to give her the balance of P58,000.00 soon thereafter. However, sometime in April or May 2001, respondent informed her that he could not give her the said amount because he used it for his political campaign as he was then running for the position of Provincial Board Member of the 2nd District of Pampanga.
Complainant maintains that inspite of their sexual relationship and the fact that respondent kept part of the money intended for her daughter, he still failed in his promise to give her a job. Furthermore, he did not file the case against Aquino and referred her instead to Atty. Federico S. Tolentino, Jr. ("Atty. Tolentino").
Sometime in 2002, assisted by Atty. Tolentino, complainant filed a criminal case for child abuse as well as a civil case against Aquino. While the criminal case was dismissed, the civil case was decided on 30 August 2004 by virtue of a compromise agreement.7 It was only when said cases were filed that she finally understood the import of the Affidavit.
Complainant avers that respondent failed to protect her interest when he personally prepared the Affidavit and caused her to sign the same, which obviously worked to her disadvantage. In making false promises that all her problems would be solved, aggravated by his assurance that his marriage had already been annulled, respondent allegedly deceived her into yielding to his sexual desires. Taking advantage of the trust and confidence she had in him as her counsel and paramour, her weak emotional state, and dire financial need at that time, respondent was able to appropriate for himself money that rightfully belonged to her daughter. She argues that respondent's aforementioned acts constitute a violation of his oath as a lawyer as well as the Code of Professional Responsibility ("Code"), particularly Rule 1.01, Rule 1.02, Rule 16.01, Rule 16.02, and Canon 7.8 Hence, she filed the instant complaint9 dated 2 February 2004.
Expectedly, respondent presents a different version. According to him, complainant needed a lawyer who would file the aforementioned action for support. Complainant's former high school classmate Reinilda Bansil Morales, who was also his fellow barangay official, referred her to him. He admits sending a demand letter to her former lover, Aquino, to ask support for the child.10 Subsequently, he and Aquino communicated through an emissary. He learned that because of Aquino's infidelity, his relationship with his wife was strained so that in order to settle things the spouses were willing to give complainant a lump sum provided she would execute an affidavit to the effect that Aquino is not the father of her daughter.
Respondent relayed this proposal to complainant who asked for his advice. He then advised her to study the proposal thoroughly and with a practical mindset. He also explained to her the pros and cons of pursuing the case. After several days, she requested that he negotiate for an out-of-court settlement of no less than
P500,000.00. When Aquino rejected the amount, negotiations ensued until the amount was lowered to P200,000.00. Aquino allegedly offered to issue four postdated checks in equal amounts within four months. Complainant disagreed. Aquino then proposed to rediscount the checks at an interest of 4% a month or a total of P12,000.00. The resulting amount was P188,000.00.
Complainant finally agreed to this arrangement and voluntarily signed the Affidavit that respondent prepared, the same Affidavit adverted to by complainant. He denies forcing her to sign the document and strongly refutes her allegation that she did not know what the Affidavit was for and that she signed it without even reading it, as he gave her the draft before the actual payment was made. He notes that complainant is a college graduate and a former bank employee who speaks and understands English. He likewise vehemently denies pocketing
P58,000.00 of the settlement proceeds. When complainant allegedly signed the Affidavit, the emissary handed to her the sum of P150,000.00 in cash and she allegedly told respondent that he could keep the remaining P38,000.00, not P58,000.00 as alleged in the complaint. Although she did not say why, he assumed that it was for his attorney's fees.
As regards their illicit relationship, respondent admits of his sexual liaison with complainant. He, however, denies luring her with sweet words and empty promises. According to him, it was more of a "chemistry of (sic) two consensual (sic) adults,"11 complainant then being in her thirties. He denies that he tricked her into believing that his marriage was already annulled. Strangely, respondent devotes considerable effort to demonstrate that complainant very well knew he was married when they commenced what was to him, an extra-marital liaison. He points out that, first, they had met through his colleague, Ms. Morales, a friend and former high school classmate of hers. Second, they had allegedly first met at his residence where she was actually introduced to his wife. Subsequently, complainant called his residence several times and actually spoke to his wife, a circumstance so disturbing to respondent that he had to beg complainant not to call him there. Third, he was the Punong Barangay from 1994 to 2002, and was elected President of the Association of Barangay Council ("ABC") and as such was an ex-officio member of the Sangguniang Bayan of Guagua, Pampanga. He ran for the position of Provincial Board Member in 2001. Thus, he was known in his locality and it was impossible for complainant not to have known of his marital status especially that she lived no more than three (3) kilometers away from his house and even actively helped him in his campaign.
Respondent further alleges that while the demand for support from Aquino was being worked out, complainant moved to a rented house in Olongapo City because a suitor had promised her a job in the Subic Naval Base. But months passed and the promised job never came so that she had to return to Lubao, Pampanga. As the money she received from Aquino was about to be exhausted, she allegedly started to pester respondent for financial assistance and urged him to file the Petition for Support against Aquino. While respondent acceded to her pleas, he also advised her "to look for the right man"12 and to stop depending on him for financial assistance. He also informed her that he could not assist her in filing the case, as he was the one who prepared and notarized the Affidavit. He, however, referred her to Atty. Tolentino.
In August 2002, respondent finally ended his relationship with complainant, but still he agreed to give her monthly financial assistance of
P6,000.00 for six (6) months. Since then, they have ceased to meet and have communicated only through an emissary or by cellphone. In 2003, complainant begged him to continue the assistance until June when her alleged fiancé from the United States would have arrived. Respondent agreed. In July 2003, she again asked for financial assistance for the last time, which he turned down. Since then he had stopped communicating to her.
Sometime in January 2004, complainant allegedly went to see a friend of respondent. She told him that she was in need of
P5,000.00 for a sari-sari store she was putting up and she wanted him to relay the message to respondent. According to this friend, complainant showed him a prepared complaint against respondent that she would file with the Supreme Court should the latter not accede to her request. Sensing that he was being blackmailed, respondent ignored her demand. True enough, he alleges, she filed the instant complaint.
On 21 July 2004, the case was referred to the Integrated Bar of the Philippines ("IBP") for investigation, report and recommendation.13 After the parties submitted their respective position papers and supporting documents, the Investigating Commissioner rendered his Report and Recommendation14 dated 2 September 2005. After presenting the parties' conflicting factual versions, the Investigating Commissioner gave credence to that of complainant and concluded that respondent clearly violated the Code, reporting in this wise, to wit:
Respondent, through the above mentioned acts, clearly showed that he is wanting in good moral character, putting in doubt his professional reputation as a member of the BAR and renders him unfit and unworthy of the privileges which the law confers to him. From a lawyer, are (sic) expected those qualities of truth-speaking, high sense of honor, full candor, intellectual honesty and the strictest observance of fiduciary responsibility all of which throughout the passage of time have been compendiously described as MORAL CHARACTER.
Respondent, unfortunately took advantage and (sic) every opportunity to entice complainant to his lascivious hungerness (sic). On several occasions[,] respondent kept on calling complainant and dropped by her house and gave
P2,000.00 as aid while waiting allegedly for the reply of (sic) their demand letter for support. It signals the numerous visits and regular calls all because of [l]ewd design. He took advantage of her seeming financial woes and emotional dependency.
x x x
Without doubt, a violation of the high moral standards of the legal profession justifies the impositions (sic) of the appropriate penalty, including suspension and disbarment. x x x15
It was then recommended that respondent be suspended from the practice of law for six (6) months and that he be ordered to return to complainant the amount of
P58,000.00 within two months. The IBP Board of Governors adopted and approved the said Report and Recommendation in a Resolution16 dated 17 December 2005, finding the same to be fully supported by the evidence on record and the applicable laws and rules, and "considering Respondent's obviously taking advantage of the lawyer-client relationship and the financial and emotional problem of his client and attempting to mislead the Commission,"17 respondent was meted out the penalty of suspension for one (1) year with a stern warning that a repetition of similar acts will merit severe sanctions. He was likewise ordered to return P58,000.00 to complainant.
Respondent filed a Motion for Reconsideration with Motion to Set Case for Clarificatory Questioning18 ("Motion") dated 9 March 2006 with the IBP and a Motion to Reopen/Remand Case for Clarificatory Questioning dated 22 March 2006 with the Supreme Court. He reiterates his own version of the facts, giving a more detailed account of the events that transpired between him and complainant. Altogether, he portrays complainant as a shrewd and manipulative woman who depends on men for financial support and who would stop at nothing to get what she wants. Arguing that the IBP based its Resolution solely on complainant's bare allegations that she failed to prove by clear and convincing evidence, he posits the case should be re-opened for clarificatory questioning in order to determine who between them is telling the truth.
In a Resolution19 dated 27 April 2006, the IBP denied the Motion on the ground that it has no more jurisdiction over the case as the matter had already been endorsed to the Supreme Court.
While we find respondent liable, we adjudicate the matter differently from what the IBP has recommended.
On the charge of immorality, respondent does not deny that he had an extra-marital affair with complainant, albeit brief and discreet, and which act is not "so corrupt and false as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree"20 in order to merit disciplinary sanction. We disagree.
One of the conditions prior to admission to the bar is that an applicant must possess good moral character. Said requirement persists as a continuing condition for the enjoyment of the privilege of law practice, otherwise, the loss thereof is a ground for the revocation of such privilege.21 As officers of the court, lawyers must not only in fact be of good moral character but must also be seen to be of good moral character and leading lives in accordance with the highest moral standards of the community.22 The Court has held that to justify suspension or disbarment the act complained of must not only be immoral, but grossly immoral.23 A grossly immoral act is one that is so corrupt and false as to constitute a criminal act or so unprincipled or disgraceful as to be reprehensible to a high degree.24 It is a willful, flagrant, or shameless act that shows a moral indifference to the opinion of the good and respectable members of the community.25
While it is has been held in disbarment cases that the mere fact of sexual relations between two unmarried adults is not sufficient to warrant administrative sanction for such illicit behavior,26 it is not so with respect to betrayals of the marital vow of fidelity.27 Even if not all forms of extra-marital relations are punishable under penal law, sexual relations outside marriage is considered disgraceful and immoral as it manifests deliberate disregard of the sanctity of marriage and the marital vows protected by the Constitution and affirmed by our laws.28
By his own admission, respondent is obviously guilty of immorality in violation of Rule 1.01 of the Code which states that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. The next question to consider is whether this act is aggravated by his alleged deceitful conduct in luring complainant who was then in low spirits and in dire financial need in order to satisfy his carnal desires. While the IBP concluded the question in the affirmative, we find otherwise.
Complainant's allegations that she succumbed to respondent's sexual advances due to his promises of financial security and because of her need for legal assistance in filing a case against her former lover, are insufficient to conclude that complainant deceived her into having sexual relations with her. Surely, an educated woman like herself who was of sufficient age and discretion, being at that time in her thirties, would not be easily fooled into sexual congress by promises of a job and of free legal assistance, especially when there is no showing that she is suffering from any mental or physical disability as to justify such recklessness and/or helplessness on her part.29 Respondent's numerous visits and regular calls to complainant do not necessarily prove that he took advantage of her. At best, it proves that he courted her despite being a married man, precisely the fact on which the finding of immorality is rooted. Moreover, the circumstance that he gave her
P2,000.00 as aid does not induce belief that he fueled her financial dependence as she never denied pleading with, if not badgering, him for financial support.
Neither does complainant's allegation that respondent lied to her about his marital status inspire belief. We find credence in respondent's assertion that it was impossible for her not to have known of his subsisting marriage. She herself admitted that they were introduced by her friend and former classmate, Ms. Morales who was a fellow barangay official of respondent. She admitted that she knew his residence phone number and that she had called him there. She also knew that respondent is an active barangay official who even ran as Provincial Board Member in 2001. Curiously, she never refuted respondent's allegations that she had met and talked to his wife on several occasions, that she lived near his residence, that she helped him in his campaign, or that she knew a lot of his friends, so as not to have known of his marital status. Considering that she previously had an affair with Aquino, who was also a married man, it would be unnatural for her to have just plunged into a sexual relationship with respondent whom she had known for only a short time without verifying his background, if it were true that she preferred "to change [her] life for the better,"30 as alleged in her complaint. We believe that her aforementioned allegations of deceit were not established by clear preponderant evidence required in disbarment cases.31 We are left with the most logical conclusion that she freely and wittingly entered into an illicit and immoral relationship with respondent sans any misrepresentation or deceit on his part.
Next, complainant charged respondent of taking advantage of his legal skills and moral control over her to force her to sign the clearly disadvantageous Affidavit without letting her read it and without explaining to her its repercussions. While acting as her counsel, she alleged that he likewise acted as counsel for Aquino.
We find complainant's assertions dubious. She was clearly in need of financial support from Aquino especially that her daughter was suffering from a heart ailment. We cannot fathom how she could abandon all cares to respondent who she had met for only a couple of months and thereby risk the welfare of her child by signing without even reading a document she knew was related to the support case she intended to file. The Affidavit consists of four short sentences contained in a single page. It is unlikely she was not able to read it before she signed it.
Likewise obscure is her assertion that respondent did not fully explain to her the contents of the Affidavit and the consequences of signing it. She alleged that respondent even urged her "to use her head as Arnulfo Aquino will not give the money for Alexandra's medical and educational support if she will not sign the said Affidavit of Disclaimer."32 If her own allegation is to be believed, it shows that she was aware of the on-going negotiation with Aquino for the settlement of her claim for which the latter demanded the execution of the Affidavit. It also goes to show that she was pondering on whether to sign the same. Furthermore, she does not deny being a college graduate or that she knows and understands English. The Affidavit is written in short and simple sentences that are understandable even to a layman. The inevitable conclusion is that she signed the Affidavit voluntarily and without any coercion whatsoever on the part of respondent.
The question remains as to whether his act of preparing and notarizing the Affidavit, a document disadvantageous to his client, is a violation of the Code. We rule in the negative.
It was not unlawful for respondent to assist his client in entering into a settlement with Aquino after explaining all available options to her. The law encourages the amicable settlement not only of pending cases but also of disputes which might otherwise be filed in court.33 Moreover, there is no showing that he knew for sure that Aquino is the father of complainant's daughter as paternity remains to be proven. As complainant voluntarily and intelligently agreed to a settlement with Aquino, she cannot later blame her counsel when she experiences a change of heart. Besides, the record is bereft of evidence as to whether respondent also acted as Aquino's counsel in the settlement of the case. Again, we only have complainant's bare allegations that cannot be considered evidence.34 Suspicion, no matter how strong, is not enough. In the absence of contrary evidence, what will prevail is the presumption that the respondent has regularly performed his duty in accordance with his oath.35
Complainant further charged respondent of misappropriating part of the money given by Aquino to her daughter. Instead of turning over the whole amount, he allegedly issued to her his personal check in the amount of
P150,000.00 and pocketed the remaining P58,000.00 in violation of his fiduciary obligation to her as her counsel.
The IBP did not make any categorical finding on this matter but simply ordered respondent to return the amount of
P58,000.00 to complainant. We feel a discussion is in order.
We note that there is no clear evidence as to how much Aquino actually gave in settlement of complainant's claim for support. The parties are in agreement that complainant received the amount of
P150,000.00. However, complainant insists that she should have received more as there were two postdated checks amounting to P58,000.00 that respondent never turned over to her. Respondent essentially agrees that the amount is in fact more than P150,000.00 - but only P38,000.00 more - and complainant said he could have it and he assumed it was for his attorney's fees.
We scrutinized the records and found not a single evidence to prove that there existed two postdated checks issued by Aquino in the amount of
P58,000.00. On the other hand, respondent admits that there is actually an amount of P38,000.00 but presented no evidence of an agreement for attorney's fees to justify his presumption that he can keep the same. Curiously, there is on record a photocopy of a check issued by respondent in favor of complainant for P150,000.00. It was only in his Motion for Reconsideration where respondent belatedly proffers an explanation. He avers that he cannot recall what the check was for but he supposes that complainant requested for it as she did not want to travel all the way to Olongapo City with a huge sum of money.
We find the circumstances rather suspicious but evidence is wanting to sustain a finding in favor of either party in this respect. We cannot and should not rule on mere conjectures. The IBP relied only on the written assertions of the parties, apparently finding no need to subject the veracity of the assertions through the question and answer modality. With the inconclusive state of the evidence, a more in-depth investigation is called for to ascertain in whose favor the substantial evidence level tilts. Hence, we are constrained to remand the case to the IBP for further reception of evidence solely on this aspect.
We also are unable to grant complainant's prayer for respondent to be made liable for the cost of her child's DNA test absent proof that he misappropriated funds exclusively earmarked for the purpose.
Neither shall we entertain complainant's claim for moral damages and attorney's fees. Suffice it to state that an administrative case against a lawyer is sui generis, one that is distinct from a civil or a criminal action.36 It is an investigation by the Court into the fitness of a lawyer to remain in the legal profession and be allowed the privileges as such. Its primary objective is to protect the Court and the public from the misconduct of its officers with the end in view of preserving the purity of the legal profession and the proper and honest administration of justice by requiring that those who exercise this important function shall be competent, honorable and reliable men and women in whom courts and clients may repose confidence.37 As such, it involves no private interest and affords no redress for private grievance.38 The complainant or the person who called the attention of the court to the lawyer's alleged misconduct is in no sense a party, and has generally no interest in the outcome except as all good citizens may have in the proper administration of justice.39
Respondent's misconduct is of considerable gravity. There is a string of cases where the Court meted out the extreme penalty of disbarment on the ground of gross immorality where the respondent contracted a bigamous marriage,40 abandoned his family to cohabit with his paramour,41 cohabited with a married woman,42 lured an innocent woman into marriage,43 or was found to be a womanizer.44 The instant case can be easily differentiated from the foregoing cases. We, therefore, heed the stern injunction on decreeing disbarment where any lesser penalty, such as temporary suspension, would accomplish the end desired.45 In Zaguirre v. Castillo,46 respondent was found to have sired a child with another woman who knew he was married. He therein sought understanding from the Court pointing out the polygamous nature of men and that the illicit relationship was a product of mutual lust and desire. Appalled at his reprehensible and amoral attitude, the Court suspended him indefinitely. However, in Fr. Sinnott v. Judge Barte,47 where respondent judge consorted with a woman not his wife, but there was no conclusive evidence that he sired a child with her, he was fined
P10,000.00 for his conduct unbecoming a magistrate despite his retirement during the pendency of the case.
We note that from the very beginning of this case, herein respondent had expressed remorse over his indiscretion and had in fact ended the brief illicit relationship years ago. We take these as signs that his is not a character of such severe depravity and thus should be taken as mitigating circumstances in his favor.48 Considering further that this is his first offense, we believe that a fine of
P15,000.00 would suffice. This, of course, is without prejudice to the outcome of the aspect of this case involving the alleged misappropriation of funds of the client.
WHEREFORE, premises considered, we find Atty. Diosdado M. Rongcal GUILTY of immorality and impose on him a FINE of
P15,000.00 with a stern warning that a repetition of the same or similar acts in the future will be dealt with more severely.
The charge of misappropriation of funds of the client is REMANDED to the IBP for further investigation, report and recommendation within ninety (90) days from receipt of this Decision.
Let a copy of this decision be entered in the personal record of respondent as an attorney and as a member of the Bar, and furnished the Bar Confidant, the Integrated Bar of the Philippines and the Court Administrator for circulation to all courts in the country.
Quisumbing, Chairperson, Carpio, Carpio-Morales, Velasco, Jr., JJ.,, concur.
2 Rollo, p. 5; The demand letter is dated 5 January 2000 but both parties admit that the same should read 5 January 2001.
3 Id. at 6.
4 Id. at 40-41.
5 Id. at 2.
6 Id. at 7.
7 Id. at 51-52.
8 The Complainant charges respondent of violating the following rules of the Code of Conduct of Professional Responsibility:
Canon 1, Rule 1.01 - A lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
Canon 1, Rule 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of the law or at lessening confidence in the legal system.
Canon 7 - A LAWYER SHALL AT ALL TIMES UPHOLD THE INTEGRITY AND DIGNITY OF THE LEGAL PROFESSION AND SUPPORT THE ACTIVITIES OF THE INTEGRATED BAR.
Canon 16, Rule 16.01 - A lawyer shall account for all money or property collected or received for or from the client.
Canon 16, Rule 16.02 - A lawyer shall keep the funds of each client separate and apart from his own and those of others kept by him.
9 Rollo, pp. 1-7.
10 Id. at 12.
11 Id. at 14.
13 Id. at 25.
14 Id. at 77-83.
15 Id. at 81-83.
16 Id. at 76.
18 Id. at 99-130.
19 IBP Resolution dated 27 April 2006 filed with the Office of the Bar Confidant on 20 June 2006.
20 Rollo, p. 56.
21 Royong v. Oblena, 117 Phil. 865 (1963).
23 Figueroa v. Barranco, Jr., 342 Phil. 408, 412 (1997).
26 See Ui v. Atty. Bonifacio, 388 Phil. 691 (2000); See also Concerned Employee v. Mayor, A.M. No. P-02-1564, 23 November 2004, 443 SCRA 448, 457.
27 Id. at 461.
28 Id. at 461-462.
29 The operative circumstances in Cojuangco, Jr. v. Palma, A.C. No. 2474, 15 September 2004, 438 SCRA 306, are markedly different from those obtaining in the present case.
30 Rollo, p. 2.
32 Rollo, p. 34.
33 De Guzman v. Court of Appeals, 329 Phil. 168, 173 (1996).
34 See Rodriguez v. Valencia and Rodriguez, 81 Phil. 787 (1948).
35 In re De Guzman, 154 Phil. 127, 133 (1974).
39 Tajan v. Cusi, Jr., 156 Phil. 128, 134 (1974).
41 Obusan v. Obusan, Jr., 213 Phil. 437 (1984); Toledo v. Toledo, 117 SCRA 768 (1963).
42 Royong v. Oblena, supra note 21.
43 Cojuangco, Jr. v. Palma, supra note 29; Cabrera v. Agustin, 106 Phil. 256 (1960).
45 In re Almacen, supra.