
    López v. Valdespino.
    Appeal from the District Court of San Juan.
    No. 34.
    Decided April 22, 1904.
    Marriage. — The parties to a marriage have a right to choose the judge who performs the marriage ceremony, and it is not necessary that the judge of the domicile of either of the said parties should act in such eases.
    Id. — The Civil Code of 1889 does not prohibit Catholics from contracting civil marriage, but merely established two forms of marriage, namely, canonical marriage for Catholics, and civil marriage, which is regulated by the same Code, for all others who may be desirous of entering into the marriage state, whether Catholics or the adherents of other religious sects.
    Id. — Coercion.—The fact that a party is compelled to contract marriage in order to avoid certain criminal liability, which may be required of him in ease he does not do so, does not constitute the coercion or compulsion prescribed by the Civil Code of 1889 as a cause for the annulment of the marriage.
    Id. — Error.—The error specified in the Civil Code of 1889 as a ground for the annulment of a marriage relates to an error as to the person which vitiates the consent, hut not to a purely accidental condition of the person of the other contracting party.
    Costs. — Costs should he imposed upon the party whose claims are wholly rejected.
    STATEMENT OE THE CASE.
    TMs is an action instituted in the District Court of San Juan for the annulment of a marriage by Adriano T. López Nussa, as plaintiff, who was represented in this Supreme Court by Attorney Jacinto Texidor, against Maria Luisa Yaldespino, as defendant, she having failed to appear as a party in this court, and the Assistant Attorney General having appeared as the representative of the People of Porto Pico, as is usual in matters of this character, for reasons of public interest. Said case is pending before us on an appeal prosecuted by Adriano T. López Nussa from the judgment rendered by said court, which reads as follows:
    “Judgment. — In the city of San Juan, Porto Rico, this fourteenth day of the month of March, 1903.
    “An oral and public hearing was had in this district court in the suit instituted by Adriano T. López Nussa, who is of legal age, a resident of San Juan, and an editor by profession, as plaintiff, who is represented by Attorney Rafael López Landrón, against María Luisa Valdespino y Agostini, who is under legal age, a resident of Maya-giiez, and engaged in domestic duties, as defendant, who was at first in default and "was afterwards represented by Attorney Tomás Bryan for the annulment of a civil marriage.
    “On July 7, 1899, Adriano T. López Nussa brought a complaint in a declaratory action of greater import in the former court of first instance of the San Francisco district of this city against his wife, Maria Luisa Yaldespino, praying for a 'declaration of annulment of the civil marriage contracted by both parties on March 28, 1899, before the municipal judge of the Cathedral district, alleging as the ground of his claim that both spouses professed the Catholic religion, and could not, therefore, validly contract a civil marriage, but only a canonical marriage in conformity with the fundamental system established by article 42 of the Civil Code, which article was not repealed by the General Ordey of March 17, 1899, and the authentic interpretation placed thereon in this respect by the Spanish Government in the Royal Order of February 27, 1875, and by the decision of the General Direction of Registries of June 19, 1880; that the judge of the Cathedral district was not authorized to solemnize the marriage for the reason that his domicile was not that of the. husband, who resided at No. 95 San Francisco street, within the district of the judge of the San Francisco district, nor that of his wife, who resides in Mayagüez, and that the marriage solemnized by said incompetent judge is void according to articles 88, 89, and subdivision 4 of article 101 of the Civil Code, which has not been repealed by section 15 of the General Order cited; that the said López Nussa contracted the marriage under the influence of threats made against him by General Guy V. Henry, the commander-in-chief of the department, who was invested with absolute and supreme authority, to cause him to be placed under arrest and to injure his interests, the intimidation produced in the mind of the plaintiff, by reason of the threats in question, constituting further ground for annulment under subdivision 2 of article 101 of the Civil Code; and, finally, that the marriage was contracted under the husband’s belief that Miss Valdespino had been suddenly stricken with an incurable disease and was liable to imminent death without any possible remedy, such erroneous belief having been induced by a medical certificate presented to him by the defendant, in which Dr. Elíseo Font y Guillot affirmed that said young woman was suffering from idiopathic steno-cardia, accompanied by intermittent accessions, being on the date of said certificate (March 27), the eve of the marriage, under the morbid influence of said attacks, and such error is another reason why, the consent granted by the husband to the celebration of the marriage being vitiated, it should produce the annulment of the same in accordance with the article and subdivision cited.
    “The complaint having been referred to the defendant and the office of the Attorney General under a citation to appear and answer the same, the said defendant was declared in default, the complaint being considered as answered; and the office of the Attorney General made report upon the reference neither opposing nor acquiescing in the complaint, but reserving the right to intervene in the proceedings and the successive steps taken in the action.
    “The plaintiff offered documentary evidence, the testimony of witnesses and expert testimony, the defendant not having proposed any evidence whatever.
    
      “Attached to the record as documentary evidence of the plaintiff were two certificates of the alcalde of San Juan to the effect that on August 16, 1900, Mr. Adriano T. López Nussa was listed as a resident of No. 29 Luna street in this city, hut did not appear as a taxpayer; a report of the alcalde of Mayagiiez to the effect that on the 21st of August the defendant resided in bwrrio ‘Beteyes’ of Mayagiiez, but possessed no property, her religion'being Catholic; a report of the Treasurer of Porto Rico to the effect that the name of the plaintiff does not appear in the list of taxpayers on property, industry or commerce of the municipal district of San Juan; a certificate of the vicar of Mayagiiez to the effect that the defendant professes the Catholic religion, and that it does not appear from the parochial archives . that she has abjured her faith; a certificate similar to the foregoing relative to the plaintiff, issued by the parish priest of the San Francisco church of San Juan; a report of Mr. Manuel Romero Haxthau-sen to the effect that he was present as interpreter at a conference held between the plaintiff, the defendant, Military-Governor Henry, and Mr. Emilio Gómez, of Mayagiiez, with reference to the making of reparation by the plaintiff for the offended honor of the defendant, but that he did not remember what was said at said conference; the record drawn up in connection with the marriage performed by the judge of the Cathedral district between the plaintiff and the defendant, in which appears the certificate issued by Dr. Font y Guillot, to which reference is made in the complaint, which certificate was accompanied by the petition presented to the municipal judge by Mr. López Nussa requesting that the marriage be celebrated at the home of the then Miss Yaldespino, as she was unáble to go to court by reason of the delicate condition of her health, the plaintiff also stating in said petition that he resided at No. 95 San Francisco street; a notarial instrument executed by the plaintiff in San Juan on March 29, 1899, before Notary Santiago E. Palmer, under No. 150, in which Messrs. Saturnino Ramírez, José Casuela, Luis Yillalón, and José Hardoy Tizol relate facts tending to show that after the marriage of the plaintiff and the defendant had been effected they separated without joining each other during the night, Miss Yaldespino having left on the following day for Mayagiiez; and, finally, a document in which Chief Justice Quiñones and Associate Justice José C. Hernandez of the Supreme Court, and Attorney Manuel F. Rossy, who acknowledged their signatures, expressed the opinion, in reply to a question submitted by General Guy Y. Plenry, eommander-in-chief of the department, tbat although there was a moral obligation on the part of Mr. López Nussa to fulfill the promise of marriage made to Miss Valdes-pino, according to the suggestion of the General, no legal means existed of compelling said party to fulfill his promise, and the only thing that the injured party could do was to proceed criminally against the plaintiff; which report was approved by the commander-in-chief of the department and was ordered to be communicated to the plaintiff.
    ‘ ‘ On the oral trial of this case the witness Santiago R. Palmer testified that he was present at the execution of the instrument above referred to; Francisco Goenaga stated that the steno-cardia, or idiopathic anoina pectoris, is not mortal, and that he gathered from the said certificate of Dr. Font that Miss Valdespino was not in danger of death on the night of the marriage; and José Casuela testified with reference to the matters embraced in said instrument, and to the effect that it was known to him, through statements made to him by the plaintiff, that General Henry employed coercion against López Nussa, as stated in the complaint.
    “The taking of the evidence having been completed, Attorney Jacinto Texidor, on behalf of the plaintiff, alleged such matters as he thought proper in support of his claim, and the case was thereupon declared ready for judgment, which was voted upon in public after a citation of the parties.
    “The legal formalities have been complied with in the conduct of this ease.
    “Judge José Tous Soto prepared the opinion of the court.
    “With regard to the ground of annulment based upon the ineom-petency of the judge of the Cathedral district, it has not been shown that Mr. López Nussa resided in the territorial jurisdiction of the municipal judge of the San Francisco district, since the certificate of the alcalde of San Juan to the effect that the plaintiff resides at No. 29 Luna street relates to the 16th of August, 1900, when the same was issued, and not to the 27th of March, 1899, when the marriage was effected, and the statement made by the plaintiff in the petition to contract marriage, namely, that he resided at No. 95 San Francisco street, is not corroborated by any other evidence whatever. On the other hand, section 15 of the General Order of the 17th of March grants to the contracting parties the right to choose the judge who is to unite them .in marriage, without requiring, as do articles 86 and 88 of the Civil Code of 1899, that the marriage compact be authorized by tbe judge of the domicile of either of the spouses, under penalty of annulment, according to subdivision 4 of article 101 of said Civil Code.
    “ As to the ground of annulment set up that the contracting parties are adherents of the Catholic religion, and that they nevertheless entered into the civil marriage reserved for non-Catholics, the Civil Code of 1899 does not prohibit Catholics from contracting civil marriage, but simply established two forms of matrimonial union, namely, canonical marriage for Catholics and civil marriage governed by the provisions of the Code for all those desirous of entering into the same, Catholics or the devotees of other creeds, and the citations made by the plaintiff in this respect of the Royal Order of February 27, 1879, and the decision of the General Direction of Registries of June 19, 1880, are not pertinent, inasmuch a,s they do not refer to the state of law recognized by the Code upon the subject of marriage. On the other hand, if any doubt should exist with reference to the capacity of Catholics to contract civil marriage, in the manner specified in article 42 of the Civil Code providing that canonical marriage should be contracted by those who profess the Catholic religion, such doubts would disappear in view of the provisions of articles 1 and 15 of the general order cited, the former of which, in prescribing that both civil and religious marriages shall be valid when recorded, the validity of the civil marriage not being related to the religion of the contracting parties; and the latter in establishing civil marriage for such persons as may be desirous of contracting it. These provisions are in perfect harmony with constitutional precepts on the subject of religious liberty.
    “Referring to the ground of annulment based upon the coercion practiced by the commander-in-chief of the department upon the plaintiff to compel him against his will to unite in marriage with the defendant, the documentary evidence adduced in support of such coercion, namely, the letter of the Chief Justice, José S. Quiñones, and Associate Justice José C. Hernández of the Supreme Court, and Attorney Manuel F. Rossy, indorsed by General Henry, prove rather that Mr. López Nussa was left at liberty to contract marriage with the defendant or not, subject, nevertheless, to the criminal liability which might be enforced against him by means of % complaint. The other evidence adduced, that is, the report of the interpreter Romero, proves nothing in relation to the alleged coercion, and the testimony of Mr. Casuelas on this point is based entirely upon statements made to him by the plaintiff López Nussa, it not being known to the witness of his own knowledge that Mr. López Nussa was threatened by the military governor.
    ‘! In respect to the error which Mr. López Nussa is alleged to have fallen into in believing that his wife was in danger of death, which error was superinduced by the certificate issued by Dr. Elíseo Font y Guillot as to the disease from which the latter was suffering, and that under the influence of such error he contracted marriage with the defendant, said certificate could not in any wise create such error in the mind of the plaintiff, since nothing is stated therein of the danger of death, but only of the impossibility of appearing in the court; and, on the other hand, even though such error did exist, it could not be such a one as would vitiate his consent so as to operate as an annulment of the matrimonial compact, under subdivision 2 of article 101 of the Civil Code of 1899, as it does not refer to such an error as to the person as is required by the said article and subdivision, but to a purely accidental condition of the person of the other spouse.
    ‘ ‘ Costs should be taxed against the party who loses his case on all points.
    “In view of subdivisions 2 and 4 of article 101, article 102, and subdivision 4 of article 103, articles 86, 88, and 42 of the Civil Code, sections 1 and 15 of the General Order of March 17, 1899, article 371 of the Law of Civil Procedure, and articles 63 and 65 of General Order 118, series of 1899, we adjudge that the complaint for the annulment of the civil marriage presented by Adriano T. López Nussa against Maria Luisa Yaldespino is and should be rejected, with costs against the plaintiff.
    “Thus by this our judgment, finally adjudging, we pronounce, order and sign. — Juan Morera Martínez, Frank H. Richmond, José Tous Soto.”
    Notice of said judgment having been served upon the plaintiff, he prosecuted an appeal therefrom, which was allowed, and the record having'been ordered to he transmitted to this court after citation of the parties for the legal period, and the appellant and the Assistant Attorney General having appeared, the appeal was conducted according to the proper procedure and a day set for the hearing, at which the parties who had appeared, through their attorneys, set up such matters as were deemed proper in support of their respective contentions.
    
      Mr. Texidor, for appellant.
    
      Mr. del Toro, Fiscal, for the People.
    The respondent did not appear.
   Me. Jitstice Sulzbacheb,

after stating the foregoing facts, delivered the opinion of the conrt.

The findings of fact and the conclusions of law of the judg ment appealed from are accepted.

In view of the legal provisions therein cited, we adjudge that we should affirm and do affirm the judgment rendered on March 14, 1903, by the District Court of San Juan, and order the record to be returned with the proper certificate.

Chief Justice Quiñones and Justices Hernández, Figue-ras and MacLeary concurred.  