
    Genara Ralat, Plaintiff and Appellant, v. Rafael Nazario et al., Defendants and Appellees.
    No. 5060.
    Argued December 9, 1929.
    Decided December 20, 1929.
    
      Cristino B. Colón, for 'appellant. Sergio León Lugo, for appellees.
   Mr. Justice Texidor

delivered the opinion of the court.

The proceedings herein were instituted under the Act of March 14, 1907, relating to actions by interveners (Comp. 1911, sections 5260-81). The parties having been notified by the clerk of the District Court of Ponce on February 20, 1929, Cenara Ralat, who was the intervener, entered her appearance on March 4, 1929. Thereupon Rafael Nazario, one of the defendants in intervention, filed a motion in which lie alleged that G-enara Ealat liad appeared twelve days after the service of the notice, that is, two days after the expiration of the period prescribed for such appearance under sections 11 and 12 of the above mentioned act. He moved that the appearance be stricken out, the complaint in intervention dismissed and judgment entered accordingly. The court heard the parties, and by an order of June 3, 1929, sustained the motion of Eafael Nazario and decreed that the complaint be stricken out as not timely filed, and that a judgment of nonsuit be entered. Judgment was entered accordingly on the same day, and on June 8, 1929, Genara Ealat filed a notice of appeal, which reads as follows:

“To the Clerk of tbe District Court of Ponce, Porto Rico.

“To Sergio León Lugo, attorney, for defendant Rafael Nazario, Ponce, Puerto Rico.

Gentlemen:

Tout are hereby notified that Genara Ralat, plaintiff herein, has appealed to the Supreme Court of Porto Rico from the order rendered by this Hon. Court in the present action on June 3, 1929, sustaining the motion of defendant Rafael Nazario praying for a judgment of nonsuit against Genara Ralat for her failure, -as found by the court, to appear within ten days from the service of the notice; and from its order striking out the complaint filed by the said plaintiff Genara Ralat, as stated by the court in its aforesaid order, and you are notified thereof for all legal purposes.”

Appellee Eafael Nazario has moved for a dismissal of the appeal on the following grounds:

“(a) The order in question is not appealable; and

“ (b) Defendants Manuel, José and Francisco Ralat have not been notified of the appeal.”

As to the contention that the order of June 3, 1929, is not appealable, the appellee is right. Section 295 of the Code of Civil Procedure does not include such orders as independently appealable. The judgment directed to be entered, and which was entered, is appealable. An appeal therefrom could have been taken, but was not taken.

It has heretofore been decided by this court that an order of a district judge dismissing the complaint on certain grounds and ordering the clerk to enter judgment in due form is not appealable (Larrínaga v. P. R. Ry., Light & Power Co., 28 P.R.R. 702).

The present case is distinguishable from that of Heirs of Nieves v. Heirs of Sánchez, 17 P.R.R. 837, in that herein the appellant has specifically and unmistakably designated the decision from which the appeal was taken, without identifying the judgment.

As to the second ground of appeal, it must be pointed out that an affidavit has been brought before us showing that the other defendants were notified of the appeal, although the service of the notice does not appear from the original document. This matter, however, has heretofore been considered and determined by this court in other cases (Battle v. Torruella, 39 P.R.R. 188).

The appeal must be dismissed.  