
    Coca v. Gatell.
    Question of jurisdiction between the Municipal Courts or Fajardo and Mayagüez:
    No. 5.
    Decided April 8, 1903.
    Jurisdiction. — Personal Action. — Domicile.—In a personal action on a contract whereof no written evidence exists, and where there is no submission of the parties, either express or implied, nor any place designated for the fulfillment of the contract, the domicile of the defendant shall determine the competency of the court to take cognizance of the action.
    Testimony of Witnesses to Determine Jurisdiction. — Testimony of witnesses as to submission taken in the absence of one of the parties while the question of jurisdiction is pending, cannot be considered for the purpose of determining jurisdiction.
    STATEMENT OE THE CASE.
    Under date of September 28, 1901, Ulises Coca y Vidal filed a complaint in the Municipal Court of Fajardo, praying that summons be served upon Federico Gatell, a resident of Mayagüez, requiring his appearance at an oral hearing, and that said Gatell be required to pay the plaintiff the sum of three hundred twenty-five dollars and thirty-five cents, being the amount of the profits due him as manager of the farm “Nuevo Mayagüez’’, situated in barrio “ Mame-yes Segundo”, municipality of Rio Grande, and belonging to defendant.
    The summons was issued as requested and a day was set for the hearing. Defendant filed a petition in the Municipal Court of Mayagüez asking that the Fajardo court be requested to decline jurisdiction of the case. The court after hearing the Fiscal, and in accordance with his opinion, granted the said petition by an order issued on the 6th of the said month, on the ground that the suit prosecuted against Federico Gatell was a personal one, it not appearing that any place had been designated for the fulfillment of the obligation, or that the defendant had expressly or by implication submitted to the jurisdiction of the Municipal Court of Fajardo, or that it was for any other reason competent to entertain jurisdiction of the case.
    Upon receipt of the said' order, the Municipal Court of Fajardo postponed the trial of the main issue and granted a hearing to the plaintiff who opposed the issuance of an order by the court declining jurisdiction, and introduced several witnesses who testified that they had been present at the execution of an extrajudicial agreement entered into in the town of Luquillo between plaintiff and defendant for the administration of the aforesaid coffee plantation, in one of the clauses of which, Gatell expressly renounced the benefit of domicile and residence, which is in contradiction of the latter’s statement contained in the petition to the effect •that Coca Vidal had gone to Mayagüez and there entered into a verbal contract in the presence of witnesses, and that a liquidation having been made in the said city, it'appeared therefrom that defendant did not owe plaintiff anything, and that by the said liquidation the contract was perfected at his residence in Mayagüez where the terms thereof were complied with.
    The petition also having been opposed by the Municipal Fiscal, an order was issued dismissing same and declaring that Gatell had expressly submitted himself to the jurisdiction of the Fajardo court, in view of articles 56, 57, rule 1 of 62, 536, 549, paragraph 2 of article 751, 93 and 94 of the Law of Civil Procedure, and 1171 of the Civil Code. The Municipal Court of Mayagüez then withdrew its order, but on appeal to the District Court of said Judicial .District, the former was ordered to maintain the disputed jurisdiction, whereupon the papers in the case were forwarded to the Supreme Court, by both of the aforesaid Municipal'Courts.
    
      Mr. del Toro, Fiscal of the Supreme Court.
    The parties did not appear.
   Mr. Justice Suuzbacher,

after making the above statement of facts, rendered the following opinion of the court:

A personal action is here prosecuted for the fulfillment of a written contract which, according to the plaintiff had been lost, but which the defendant claims was a verbal one, and whereof no written evidence exists. No submission to the jurisdiction of any court, either express or implied, .nor place designated for the fulfillment of said contract is proven, for the testimony of witnesses received in defendant’s absence and while the question of competency was still pending, cannot be considered. The defendant’s domicile, Mayagiiez, is therefore the only one that should determine the competency of the court to take cognizance of the suit brought against him, pursuant to the provisions of articles 62 of the Law of Civil Procedure and 1171 of the Civil Code. This is the doctrine announced in various decisions rendered by the Supreme Court of Spain.

We adjudge that we should declare, and do declare, that the Municipal Court of Mayagiiez has jurisdiction to hear and determine the suit instituted by Ulises Coca y Vidal against Federico Gatell, and order that all the papers in said qase, duly certified, be accordingly forwarded to aforesaid court, and that the Municipal Court of Fajardo be notified of this decision. Costs will be borne by the Government.

Messrs. Chief Justice Quiñones, and Associate Justices Hernández, Figueras and MacLeary, concurring.  