
    Guasp v. Rosch.
    Appeal from the District Court of Mayaguez.
    No. 33.
    Decided November 8, 1905.
    Demukkek — New Pacts. — The office of a demurrer is not to set up new facts, but only raises an issue as to the sufficiency .of the facts alleged in the complaint.
    In. — Appeal.—An order overruling a demurrer is not a final judgment and therefore is not an appealable order.
    
      The facts are stated in the opinion.
    
      Mr. Alvarez Nava for appellant.
    The respondent did not appear.
   Me. Justice Wole

delivered the opinion of the court.

In the District Court of Mayaguez the complainant, Deme-trio Gfuasp, filed a suit against La Sucesion de Luis Rosch for the recovery of a mortgage debt. The complaint was filed on the 16th of January, 1905. On the 20th of March, 1905, the defendant filed a demurrer alleging that there was another action pending between the same parties fdr the same cause, and citing section 105 of the Code of Civil Procedure. The demurrer sets up facts which do not appear in the declaration, to the effect that the same complainant had filed another suit for the same cause of action, and that the former suit had been lost, and appealed by the complainant to the Supreme Court. The court below overruled the demurrer.

The record in this case is very badly made up. The former complaint and the sentence of the court thereon are sent up to this court without anything to show how they became a part of the record.

The appellee, however, has filed no appearance in this court, aüd as the case may be taken to final judgment below, and the same question raised, we deem it well to say that in order for a like demurrer to prevail it is required by section 105 that the matter complained of must appear on the face of the complaint.

The appeal is from the order of the court overruling the demurrer, and there is nothing to show that the defendant stood on his rights or that the demurrer was made final. The appeal would not seem to be among those included in section 295 of the Code of Civil Procedure.

It may be that the initial paragraph in section 105 is not as clear in the Spanish translation as it should be, but the words cuando resultare del contenido de aquella, 1 ‘ on the face thereof” in the English copy, refer to the declaration; and this is necessarily true when it is remembered that it is not the office of a demurrer to set up new facts; but is the defendant’s method of declaring that the facts set up in the complaint are not sufficient in law.

In this case there was nothing on the face of the complaint to show that there was any other cause of action pending between the same parties.

The appeal not appearing to be from a final judgment, it must be dismissed with costs.

Dismissed.

Chief Jiístice Quiñones and Justices Hernandez, Pigueras and MacLeary concurred.  