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28 P.R. 152

Gandía v. Trías

Supreme Court of Puerto Rico

Decided March 9, 1920

Supreme Court of Puerto Rico · decided 1920-03-09

<p>Abpeal — Notice.—Section 295 of the Code of Civil Procedure, providing that the time within which to appeal shall begin to run from the docketing of the judgment, was modified by the Act of March 9, 1911, so as to read that the time shall begin to run from the date of the filing of notice of the judgment to the losing party among the papers; therefore an appeal will not be dismissed as premature if taken after such notice was given and filed in the record, although the judgment had not been docketed.</p>

Decided 1920-03-09

¶1CONCURRING OPINION OP

MR. CHIEF JUSTICE HERNÁNDEZ.

¶2In this case the appeal was taken from a judgment of the District Court of San Juan, Section 2, before the judgment had been entered and if this fact alone should be considered, without taking account of others which appear from the record, the appeal should be dismissed in accordance with the jurisprudence laid down by this court regarding premature appeals.

¶3For the purposes of an appeal there is no judgment until it is entered. Section 231 of the Code of Civil Procedure orders that the clerk shall keep with the records of the court a book to be called the “judgment book” in which the judgments must be entered. Section 233 provides also that immediately after entering the judgment the clerk must attach together and file, among other documents mentioned, a copy of the judgment. Said section 233 does not prescribe that the original judgment shall be attached and filed, but only a copy of it, which shows clearly that there is no judgment but the original one entered in the judgment book. That being the case, the judgment of which notice must be given to the losing party, under Act No. 70 of 1911, is no *157other than the one entered in the,judgment book; therefore the time within which to appeal begins to rnn from the date of the notice of the judgment so entered. If the appeal is taken sooner it is premature. But the foregoing general rule does not affect a case like the present where the clerk of the court notified the appellant that, judgment had been rendered and entered in the judgment book, for in view of that notice given by a public officer in an official document, the appellant acted in good faith in the belief that there was a "docketed judgment. We know of no statute imposing upon the losing party the duty of examining personally the judgment book to ascertain the truth of the clerk’s statement. Considering the notice given to the appellant by the clerk that judgment had been rendered and entered and considering' also-that there was actually a written judgment signed by the judge and the clerk and included, in the record and that the copy of that judgment which appears in the transcript agrees with the copy of the 'docketed judgment which' was attached to the motion for dismissal, it is reasonable and fair to conclude that the case at bar, by reason of its characteristics, does not come within the former jurisprudence of this court, and that the judgment should be considered as entered nunc pro tunc, or as of the date of the notice; therefore the appeal- should not be dismissed as premature.

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