
    Silva v. Miranda.
    Appeal in cassation from a judgment rendered by the District Court of San Juan.,
    No. 16.
    Decided October 15, 1902.
    Appeal in Cassation: — An appeal in cassation does not lie when it is based on a lack of personal capacity of any of the parties to sue, but only when such capacity has been recognized in a person who does not possess it.
    STATEMENT OE THE CASE.
    Don Manuel Navarro y Acosta died on the 12th of February, 1883, leaving a will executed in this City on the 27th of October, 1875, before the Notary Public Don De-metrio Jimenez y Moreno, by which he appointed Don Juan Miranda y Costa guardian and curator ad bona of his children Don Antonio, Don José and Doña Petra, also charging the said Don Juan Miranda y Costa with the duties of general executor.
    On March 20th, 1899, the said Miranda resigned the positions aforesaid, and the resignation being accepted, he was thereupon ordered to render an accounting and liquidation of the estate intrusted to him.
    At the request of the minors that a curator ad litem be appointed, Don Francisco Pantaleón Silva being the person selected, on his acceptance the appointment was made effective April 15th, 1899. .
    On the 2nd of May of the same year Don Juan Miranda y Costa presented the account required, and the curator ad litem was ordered to acquaint himself therewith.
    
      The said curator on behalf of the minors aforesaid attacks the accounts presented, and concludes by praying that they be not approved, for as the- duties conferred upon him required that only the income of the estate should be applied 'to maintenance (of the minors), he must deliver all of the property inherited by the said minors from .their father, and sister Doña Manuela, or the value thereof according to the appraisement made in the testamentary proceedings, with costs.
    Notice having been served upon Don Juan Miranda y Costa, he urged that the said accounts should be approved, and among other statements (which are not necessary for the consideration of this appeal) he pleaded a lack of personal capacit}! to sue on the part of the plaintiff, inasmuch as Don Francisco Pantaleón Silva y Correa was not, and is not, curator for the said minors; and he concluded with a prayer that the Court after a consideration of the exceptions presented, should dismiss the complaint in all of its parts, on the strength of any one of the said exceptions, and impose the costs upon the plaintiff.
    After all the proceedings were duly had the District Court of San Juan on the 29th of July of last year, rendered judgment holding that from the 1st of January, 1890, when the Civil Code took effect in this Island, the appointment of curators ad litem was discontinued, and since that date guardianships must be exercised in accordance with the provisions of the said Code, although guardians and curators may have been appointed under the provisions of the former law, and in accordance with that express provision the curator ad litem lacks the capacity to represent the Navarros, in the attack made upon the accounts rendered by their former guardian and curator; and acts executed contrary to law being null and void the said Court should have declared and did declare null and void all of the proceedings in this case, beginning with the order admitting-the complaint, and dismissed the same without any special imposition of costs.
    From this judgment Don Juan Miranda y Costa took an appeal in cassation for error of procedure, and entered notice of appeal for violation of law, basing the former on paragraph 2 of article 1691 of the Law of Civil Procedure, that is to say, the lack of personal capacity to sue on the part of the complainant, and alleging a violation of Articles 531, 532, 533, 534, 535, 536, 537 and 538 of the Law of Civil Procedure, that is to say, all of the sections which treat of dilatory exceptions and Article 62 of General Order No. 118 of August 10, 1899.
    
      Mr. Hernández López, for appellant.
    
      Mr. Diaz Navarro, for respondent.
   Me. Justice Figueeas

delivered the opinion of the Court: As has been held by the Supreme Court of Spain, in its judgment of June 8, 1897, appeals in cassation based on a lack of personal capacity of any of the parties to sue, lie only when such capacity has been unduly recognized in a person who does not possess it, but appeals do not lie when the trial court has refused to recognize such personal capacity.

The only ground which the court below had for annul-ing the proceedings was the lack of personal capacity of the curator ad litem to sue, an exception which was duly urged by the appellant, for which reason the appeal based on an error of procedure, provided for in paragraph 2 of article 1691 of the Law of Civil Procedure, does not lie.

We should declare and do declare that the appeal in cassation taken by Don Juan Miranda y Costa, based on error of procedure, does not lie, and the costs of this proceeding are taxed against the said Don Juan Miranda y Costa; and let the proper proceedings he had with respect to the appeal based on error of law.

Messrs. Chief Justice Quiñones and Associate Justices Hernández, Sulzbacher and MacLeary concurred in the foregoing opinion.  