
    Frau v. Canals.
    Appeal in cassation from a judgment rendered by the District Court of Arecibo.
    No. 22.
    Decided February 18, 1903.
    Appeal. — Final Jud&ment. — An appeal in cassation lies only from the final judgment.
    Id. — Exclusion of Impertinent Evidence. — The exclusion of impertinent interrogatories does not deprive a party of his defence, and an appeal for error of procedure does not lie.
    STATEMENT OF THE CASE.
    On the 21st day of February, 1901, Doña Amelia Frau y Vázquez who, on the 26th of June, 1899, contracted a can-nonical marriage with Don Pedro A. Canals, a record of the same haying been made in. the Civil Register, both parties to the marriage being natives of Mallorca, filed suit for divorce, against her said husband on the ground of ill-treatment, consisting in his intemperance and inconsiderate conduct towards her which ill treatment had been aggravated by his failure in the first place to give her the attention that it was his duty to give in the illness which she contracted through his inconsiderate conduct, and for having abandoned her afterwards, refusing to provide the medicines which she needed, and which resulted in her illness reaching an alarming stage. Don Pedro Canals in answering the complaint alleged, by way of a dilatory exception, that the court lacked jurisdiction to try the case, basing the same on the fact that both the plaintiff and defendant were foreigners, on which ground he prayed the District Court of Arecibo to hold that it was without jurisdiction to try the case, and to refuse to take cognizance thereof, and that the proceedings should be sent through the Spanish Consul in this Island to the Spanish ecclesiastical courts; and taking up the main point at issue in the ease contested the .complaint, asking that the same be dismissed because there was no legitimate cause for divorce, and because a divorce could not dissolve. the marriage tie even if such cause did exist. The District Court of Arecibo, at the first session of the hearing held on the 22nd of July of the aforesaid year, made an order declaring that it had jurisdiction to try the case; and the trial' thereof having been proceeded with, and evidence having-been introduced showing that the disease from which Doña Amelia Frau was suffering had been contracted by carnal intercourse with her husband Don Pedro A. Canals, the said Canals prepared ■ interrogatories to which the said Amelia Frau should reply, among which are to be found intei rogatories marked numbers 3, 4 and 18, which read as follows:
    “III.- — -Whether it is true that when she married she was so innocent, honest and pure, that on account of her bashfulness, during the first two days after the marriage she refused to have sexual intercourse with her husband.”
    “IV. — Whether it is true that the third day after the wedding was the first time that she had carnal connection with her husband, who on that same day was obliged to leave for San Juan, the deponent remaining at the house of her mother”.
    “XVIII. — Wlieter it is true that when she was a single girl she suffered from irregularities of menstruation or in the presentation' of the monthly period”. The said court declared the foregoing interrogatories to be impertinent, in its session held on the 8th of October, 1901, against which ruling-counsel for Canals protested.
    The Arecibo Court by a judgment rendered on the 31st of January of the year last passed sustained the complaint filed by Doña Amelia Frau y Vazquez asking for a divorce from her husband Don Pedro A. Canals, and accordingly declared the marriage dissolved with the'costs against defendant, and making futher declarations to which it is not necessary for us to refer. Counsel for Don Pedro A. Canals took an appeal in cassation for error of law, from the order entered on the 22nd of July, by which the court held that it had jurisdiction to try the case; he also took an appeal in cassation from the judgment rendered on the 31 st of January, for error of procedure based on paragraph 5 of article 1691 of the Law of Civil Procedure, because the court declared impertinent the third, fourth and eighteenth interrogatories to which Doña Amelia Frau should have replied, which interrogatories come within the letter and the spirit of Articles 564 and 580 of the Law of Civil Procedure, since the said ruling involves a refusal to hear evidence which undoubtedly deprives a party .of his defence, inasmuch as the appellant promised that his innocence should be proved by the replies to said interrogatories, and also he took an appeal in cassation for error of law, from the said judgment; which appeals were allowed by order of the 26th of February of last year. The record having been received in this Supreme Court and the apellant having entered his appearance the record was delivered to him for a term of twenty days for the purposes o'f the appeal in cassation for error of procedure, and upon returning the said record he perfected his appeal in cassation for error of law, from the order of the 22nd of July, 1901, in order that the same might be ready in case the court should see fit to hear it first in view of the fact that it involved a dilatory exception, and at the same time he again presented his appeal for- error of procedure from the judgment aforesaid, making it appear of record that he asked for the correction of the defect constituted by the refusal of the trial court to hear the evidence referred to, and that he accordingly entered his exception to the said ruling.
    
      Mr. Alvarez Nava, for Appellant.
    
      Mr. Texidor, for Respondent.
    
      Mr. Del Toro, Fiscal of the Supreme Court.
   Mr. Justice Sulzbacher,

after making the above statement of facts, delivered the following opinion of the Court.

The appeal in cassation from the order of July 22, 1901, rendered by the District Court of Arecibo declaring that it had jurisdiction to try the case does not lie, since such an appeal is only given from a final judgment rendered in a case, as is inferred from the language of Section 62'of General Order No. 118, Series of 1899, which provides in its last paragraph that if the order should overrule the dilatory exception, the court shall proceed with the trial of the case without any delay whatever, and hear the other evidence proposed bearing on the litigated points; but a party is not thereby deprived of an appeal from such order in cases like the one at bar involving a question-of jurisdiction, since an appeal in cassation for error of law or for error of procedure, lies from a final judgment in the cases provided for by articles 1690, paragraph 6, and 1691, paragraph 6, of the Law of Civil Procedure. The interrogatories held by the trial court to be impertinent should in fact have been so declared, since whatever might have been the result thereof, in case they had been replied to by the plaintiff, would not have influenced the result of the suit, and much less could their exclusion have deprived a party of his defence; for which reason the appeal for error of procedure provided for in paragraph 5 of article 1691 of the law referred to, does not lie.

We should declare, and to declare, that the appeal in cas-sation for error of law taken from the order of the 22nd of July, 1901, cannot be decided, and we declare that the appeal for error of procedure taken from the final judgment does not lie, and tax the costs against Don Pedro A. Canals. This decision will be communicated to the District Court of Arecibo and the appeal for error of law taken from the same judgment will be called in due time for the disposition thereof.

Messrs. Chief Justice Quiñones and Associate Justices Hernández, Figueras and MacLeaxy, concurred in the foregoing opinion.  