Public-domain · open source
OpenJurist

19 P.R. 1104

Aponte v. Freiría

Supreme Court of Puerto Rico

Decided December 19, 1913

Supreme Court of Puerto Rico · decided 1913-12-19

<p>Appeal — Dismissal-op Appeal — Amount in Litigation. — When, as in tbe case at bar, it is only alleged in tbe complaint that tbe value of tbe bouse in litigation is less than $500 and from tbe evidence of tbe plaintiff-respondent it is shown that tbe house is worth more than $400, a motion to dismiss tbe appeal on tbe ground that tbe 'amount in litigation does not exceed $300 should be overruled.</p> <p>Ib. — Intervention—Service oe Notice of Appeal — Attachment—Default— Adverse Party. — When in an action, of intervention in ownership of real! property brought against the owner of the attached property and the creditors who attached it judgment is rendered against the defendants, a co-defendant owner of the attached property having been adjudged in default for non-appearance either in the municipal court or the district court, said co-defendant is not an adverse party because he would not be prejudiced by a reversal of the judgment appealed from, and therefore it is not necessary to serve him with the notice of appeal, nor will the appeal be dismissed on that ground.</p> <p>Id. — Notice of Appeal — Omission Supplied. — In accordance with section 299 of the Code of Civil Procedure, the notice of appeal is an essential part of the transcript of the record in an appeal. A simple reference thereto is not sufficient. Its omission in this case was supplied by the respondent's filing a certified copy of the notice of appeal.</p>

Decided 1913-12-19

Me. Justice Wolf

¶1delivered the opinion of the court.

¶2. There are two motions in this record to dismiss the appeal. The first of them requests the dismissal on the ground that as the case originated in the Municipal Court of Gruayama, the jurisdictional sum, as appears from the face of the complaint, is less than $300 and hence that this court lacks jurisdiction on appeal from the district court. On examining the' complaint the only fact that appears therefrom is that the value of the house in question is less than $500, and in the evidence the testimony of the appellee’s own witness shows that the property was worth more than $400, hence this motion to dismiss cannot prevail.

¶3The other ground for the dismissal of the appeal is that a co-defendant by the name of Murillo, who was in default and who did not defend the action in either of the courts, was not cited or notified' in the appeal to this court. The action' in this case was to recover a house improperly attached by the defendants, José María Freiría and Mateo Defendini. These two said defendants had attached the house as belonging to the said Murillo, whereupon the complainant filed this suit to rid the house from the effects of the alleged wrongful attachment. Judgment being found in his favor, the de*1106fendants Freiría and Defendini have appealed. Mnrillo either lias no interest whatsoever in the house or the house belongs to him, and hence a reversal would favor him inasmuch as he might perhaps have a balance in his -favor after the defendants had satisfied their claims, hie could not be prejudiced by the reversal and hence he is not a party adverse to the' appellants in this case, so' that the second ground of dismissal is without foundation.

¶4"When we first examined this record we found nothing therein which showed that only two of the defendants had appealed, the record merely stating that on May 31, 1913, the defendants appealed and that such appeal was notified on the same day to the attorney of the complainant, the appel-lee in this court. "We have decided in several cases, Fernández v. The Estate of Irizarri, 10 P. R. R., 47, and Hernández v. Medina, decided November 10, 1913, that a copy of the notice of appeal must be inserted in the record' in accordance with section 299 of the Code of Civil Procedure. A mere reference to the same is not sufficient. However, the appellee, although he made no specific reference thereto in his motion, has brought up a certified copy of the notice of the appeal which supplies the defect that might have been held to be lacking in the record. Under these circumstances the motions to dismiss must be overruled and the case should proceed to hearing.

¶5Motions overruled.

Chief Justice Plernández and Justices del Toro and Aldrey concurred.Mr. Justice MacLeary took no part in this decision.
/19/pr/1104 · .json · Public domain