
    Blondet, Plaintiff and Appellee, v. Benítez et al., Defendants and Appellants.
    Appeal from the Second District Court of San Jnan in an Action of Unlawful Detainer. — Motion for Dismissal.
    No. 3152.
    Decided March 6, 1924.
    Appeal — Delay—Frivolous Appeal. — For the dismissal of an appeal under Buie 59 of the Supreme Court it is not sufficient that ninety days may have elapsed since the notice of appeal was filed without the transcript's having been filed, but it must be shown that the appellant was not diligent or that the appeal is frivolous.
    The facts are stated in the opinion.
    
      Mr. M. Tons Soto for the appellants.
    
      Messrs. R. H. Blondet and J. Validejulli for the appellee.
   Mr. Justice Fbanoo Soto

delivered the opinion of the court.

This is a motion for the dismissal of an appeal taken by the defendants from the judgment of unlawful detainer rendered by the trial court in favor of the plaintiff.

The motion is based on Rule 59 of the Supreme Court on the grounds that the appellants had not filed the record within ninety days and that the appeal was frivolous, the defendants having no good cause for litigating further. The said motion was filed in this , court on February 4, 1923.

The appellants opposed the motion on February 12, 1923, and exhibited the judgment-roll and statement of the case.

The appeal was taken on August 22, 1923, and on the 31st of that month the appellants were granted an extension of twenty days for presenting the proposed statement of the case, which was filed in the trial court on. September 14, 1923. The trial court ordered certain additions to be made to it and the proposed statement was again presented on September 19, 1923, and approved by the trial judge on January 22, 1924. These proceedings do not show, therefore, the lack, of diligence imputed to the defendants in the prosecution of their appeal, because the mere lapse of the ninety days referred to in rule 59, supra, is not sufficient, but it must be shown satisfactorily that the appellants were not diligent in proceeding with and preparing their appeal.

Ás it has not been shown to the satisfaction of this court that the appeal is frivolous, it can not be dismissed on that ground.

For these reasons the motion for dismissal must be overruled.

Motion overruled.

Chief Justice Del Toro and Justices Wolf, Aldrey and Hutchison concurred.  