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12 P.R. 52

Zarate v. Villabaso

Supreme Court of Puerto Rico

Decided February 13, 1907

Supreme Court of Puerto Rico · decided 1907-02-13

<p>Appeal from a Municipal Court — Filing op Transcript op Record. — The transcript of records on appeal from municipal courts must be filed in the-district courts within the period of 10 days fixed by rule 34 of the rules governing these courts, which, having- been duly promulgated, have the force of law.</p> <p>Id. — Duties op Appellant — Dismissal op Appeal. — Although rule 34 provides that secretaries of municipal courts shall prepare and transmit the transcript, of the record to the district court within the 10 days following the date upon which the appeal is perfected, nevertheless it is the duty of the appellant to see that the secretary complies with this provision, taking such steps as may be necessary therefor, as otherwise the respondent has a right to ask for and obtain the dismissal of the appeal. '</p> <p>Id. — Although there is no legal provision which expressly authorizes the dismissal of an appeal in the cases referred to in the foregoing paragraph, the-provisions of article 7 of the Oivil Code, which are applicable not only to-questions of substantive law, but also to questions of adjective law, and especially the provisions of section 36 of the Code of Civil Procedure, are-sufficient to warrant this procedure in the district courts.</p> <p>Certiorari — Judgment.—In certiorari casos the appellate court may render judgment affirming the proceedings had in the inferior court, or annuling the writ issued and leaving such court at liberty to proceed the same as if the writ had not been issued, this being the decision of this court in the cate at bar.</p>

Decided 1907-02-13

¶1DISSENTING OPINION OE

MR. JUSTICE WOLF.

¶2The principal ground of my dissent is that while the rules of the district court require an appeal to be filed within 10 days from the time an appeal is perfected there is nothing in the law which requires the appellant to file the same.

¶3I do not understand that the appellant needed to urge the secretary to comply with his duty in this case. It was to the interest of the appellee to speed the cause and for him to require the secretary to send up the record. In any event, if there is a defect in the rule of the district court the same should be amended and there should not be read into such rule a duty on the part of the appellant not imposed by law.

¶4Section 36 of the Code of Civil Procedure has scant application to the case. It does not authorize the court to convert a rule binding on the secretary of the municipal court into a duty imposed on an appellant or declare abandoned an appeal where it was not shown by the appellee that the appellant had defaulted.

¶5For tlie reasons aforesaid I feel compelled to dissent from the opinion rendered by the majority of the court in this case.

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