
    Moret v. Vázquez.
    Appeal from the District Court of San Juan.
    No. 108.
    Decided March 15, 1904.
    Divorce — Abandonment.-—The abandonment of one spouse by the other implies a permanent separation by the latter and the denial on his or her part of the assistance due to the other spouse.
    Id. — Duties of the Wife. — It is the duty of the wife to follow the husband wherever he may establish his residence, and it shall be understood that she voluntarily fails to follow him unless it appears that there is some reason whieh prevents her from so doing.
    Id. — The firm and constant determination of one of the spouses not to live with the other spouse, and thus comply with the duties imposed upon such person by the natural and the civil law, and sueh determination being persisted in for more than one year, constitutes abandonment as defined by article 164 of the Civil Code as a cause for divorce.
    Appeal — Evidence—Want of Defense — Want of defense cannot be pleaded by a party who has had ample opportunity to present all such evidence as he may deem proper, and who, upon the oral trial, has not protested or excepted to errors alleged to have been committed in the order of procedure, and hence the same should be considered as consented to, and cannot serve as a ground for the reversal of the judgment.
    Id. — The testimony of witnesses taken without the knowledge of the adverse party and not duly offered on the trial, and tendered in second instance after parties had been cited for judgment, is not admissible.
    ¡STATEMENT OE THE CASE.
    This is a declaratory action for divorce prosecuted in the District Court of San Juan by Simón Moret y Muñoz, plaintiff, represented by his attorney, Juan Hernández López, against Enriqueta Vázquez, defendant, represented, first, by Attorneys José Hernández Usera and Ramón Falcon, and at the trial by José de Jesús Tizol; which case is pending before us on appeal taken by counsel for the defendant from the judgment rendered by aforesaid district court. Said judgment reads as follows:
    “Judgment. — In the city of San Juan, Porto Rico, July 24, 1903. A hearing was had of this action for the annulment of a civil marriage and incidentally for divorce instituted by Simón Moret Muñoz, a physician, residing in Cayey, plaintiff, represented by Attorney Juan Hernández Lóuez, against Enriqueta Vazquez, residing in New York, and engaged in ordinary household duties, defendant, represented at the trial by Attorney José Jesús Tizol, the Fiscal having also entered an appearance.
    “On September 5, 1902, said Moret instituted an action for divorce in the District Court of San Juan against his wife, Enriqueta Vázquez, alleging the following facts: That the couple had contracted civil marriage in the city of New York, July 9, 1898, according to a document accompanying the complaint; the husband was unable to consummate the marriage because of the wife’s resistance; that she went to live by herself and on her own account and refused to come to the house of her husband, notwithstanding his efforts and those made through the intervention of his father, she going so far as to refuse him admission into her private apartments in the house in which she lived; that when plaintiff, by reason of his employment as army surgeon, was about to return, to Porto Rico, he searched for his wife in order to induce her to accompany him to his new home, but failed to ascertain her whereabouts; and on the occasion of a trip which he made to New York he again sought her, but failed to find ' her; that from Porto Rico he sent her a letter with a draft, and she had returned both things to his mother; and, finally, that the desertion occurred in 1898, it being now over a year since plaintiff has been living in Porto Rico, engaged in the discharge of his duties as army surgeon, and during all this time his wife, although a native of Porto Rico, has refused to come and live with him. As grounds of law plaintiff urged that in the same manner as impotence existing prior to. the marriage renders it void, so the refusal of the wife to cohabit should be considered sufficient cause of nullity, it implying, moreover, desertion, thus involving a twofold cause for divorce. Finally he prayed that the costs should be taxed against defendant.
    “Notice of the complaint having been served upon defendant it was answered on her behalf by her attorney, José Hernandez Usera, who denied all the facts set forth in the complaint, except such as had reference to the marriage of the parties. He further alleged: That it was the husband who, since July, 1899, had deserted his wife, by coming to this country without inviting her to accompany him or apprising her of his departure or even providing for her subsistence. As grounds of law he cited article 131, paragraph 5, article 164, paragraph 6, and article 165 of the Civil Code, and the principle that divorce cannot be sued for by the guilty spouse.
    “At the proceedings for the taking of evidence the plaintiff offered as proofs public and private documents and the testimony of witnesses, while the defendant proposed as means of proof that of confession in court and of private documents. At the oral hearing plaintiff submitted these notarial instruments and defendant a letter signed by Moret, which were admitted.
    “Among the proofs filed with the record by the plaintiff there appeared the certificate of birth of defendant showing that she was born on the twenty-fourth day of January, 1872, and a certificate from Capt. Owal P. Townsend, Porto Rico Regiment, to the effect that plaintiff had been on duty in Cayey, as assistant surgeon of the Provisional Regiment of Infantry of Porto Rico, since July 2, 1901.
    “On behalf of the said plaintiff, George A. C. Barnett, attorney at law, testified that some time in November, 1899, at the request of plaintiff, he had had an interview with defendant for the purpose, of inducing her to live with her husband, which she refused to do, declaring that she would never again live with him. Francisca Ron-cero testified that about three years ago, while the spouses were already living apart, Dr. Moret had commissioned her to see his wife and ask her if she had received several letters from him, which commission she was unable to fulfill, because she could not find Mrs. Vazquez. José A. Alonzo, an intimate friend of Dr. Moret, testified that by order of the latter, he had remitted every week a certain sum of money to the defendant, through an uncle of hers. That he had been twice to Mrs. Vásquez’s house in New York. The first time he was informed that she was not in; when he next called he sent her word that the object of his visit was to induce her to return to her husband, but she refused to receive him.
    “At the trial three notarial instruments, dated April 25, 1903, were presented and admitted pursuant to article 505 of the Law of Civil Procedure, in one of which documents it is set forth that Mrs. Váz-quez, being requested by Notary Rafael López Ladrón, on behalf of Simón Moret, to repair to her husband’s home in Cayey and comply with the obligations of a married woman, sbe referred him to her lawyer, F. Dexter, who had ample power to act for her in the matter. The other two documents were requisitions to her attorneys, F. IT. Dexter and J. Hernandez Usera, to which the former had replied that defendant had spoken to him about the matter referred to in the requisition, but that he had refrained from giving an opinion when informed by the defendant that her lawyer was Hernández Usera. As to the latter, his reply was that he had just withdrawn from the case as counsel for defendant.
    “Plaintiff, on being examined as a witness, testified that he had married Enriqueta Vázquez in the city of New York, in 1898, when eighteen years of age, while a medical student, his wife being at the time from twenty-one to twenty-three years old. He shortly after went to the Cuban war, returning to New York in 1899. He lived there with his wife, and then began the matrimonial quarrels. He secured a situation in a drug store at eight dollars a month, six of which he gave to his wife. She went away from New York without acquainting him of her ■ departure, notwithstanding which he continued sending her a weekly 'allowance. He succeeded in ascertaining her whereabouts and went to see her, but she refused to receive him and he had to force an entrance into her room, with the attending scandal. He sent Lawyer Barnett and Mr. Pedro Salazar to induce her to join him, but their errand proved a failure. He personally went, accompanied by Mr. Pedro Guerrero, to 114th street, third floor, New York, and enjoined her to come with him to Porto Rico, which she refused to do. And when she returned to the Island on the occasion of the present suit, he sent several friends to her for the purpose of prevailing upon ber to come and live with him, but she persisted in her refusal. The witness Benigno Qu'evedo testified that at Moret’s request he had tried to see Mrs. Vázquez for the purpose of persuading her to join her husband, but he was unable to secure a personal interview with her, nor would she write in response to his communications. Salvador Gallart testified that he had seen Moret mail a registered letter addressed to his wife, containing a draft for fifty dollars. Julio Rames, postmaster at Cayey, testified that aforesaid letter, containing a-check for fifty-clollars, had been registered by Moret oh the twenty-first day of April, 1902. Pedro Guerrero testified that in March, 1902, he had accompanied Moret, who was then a medical officer on the steamer ‘Philadelphia,’ to the third floor of a house in 114th street, where Mrs. Vázquez lived, and that upon being invited by Moret to accompany him to Porto Rico, she had refused to do so.
    “Two letters, as evidence for plaintiff, one undated and the other incomplete, addressed by his wife to Moret, have been filed with the record and acknowledged by her, but as they have no bearing upon the subject-matter of this suit, their contents are omitted.
    “As evidence filed with the record on behalf of the defendant ¿there is a communication from Col. Buchanan stating that Moret had entered upon his duties on June 22, 1901.
    ‘ ‘ Three letters written and acknowledged by the plaintiff were submitted on behalf of the defendant, one addressed to the-plaintiff’s father, Simon Moret, Ponce, dated in New York, December • 1899. acknowledging the receipt of forty dollars, and asking his. father not to forsake him or his wife; another addressed to Mr. William de Rivera, New York, dated in that city, December 26, 1899, in which he says that he is glad that his wife is Mr. Rivera’s guest, and proposes to arrange matters so that Rivera may not have to bear his wife’s expenses ; and the third addressed to Mrs. Walling, requesting the latter to send him the account of the expenses incurred by his wife from July 9, 1898, to March 14, 1899, and giving as an excuse for not having settled with her before, the insufficiency of his means.
    “Plaintiff also acknowledged a letter from him to his wife dated in New York, May 30, 1899, wherein he tells her that he had gone away from her on account of her sister Consuelo, but that he would not forsake her; that on the following day he would begin to work as he had promised her, and on Saturday would send her weekly allowance, which he earnestly begged her to accept, and informs her that he proposed to resume in September his studies and obtain a diploma so as to return to live with his wife like an honorable man.
    “At the oral hearing, which took place behind closed doors, owing to the nature thereof, counsel for both parties presented such arguments as were deemed pertinent to their respective claims, while the plaintiff desisted from his action for nullity of marriage and from his allegation of grievous wrongs as a cause for divorce. Both parties appeared at the hearing, the Department of Public Prosecution failing to do so, although cited for the purpose, nor had it answered the complaint when notice thereof had been served upon it.
    
      “After citing the parties, the judgment in this civil case, as unanimously accepted, was delivered in open court.
    “In the conduct of this trial the legal formalities have been observed.
    “Judge José Tous Soto prepared the opinion of the court, as follows :
    “Plaintiff having desisted from his allegations of nullity of marriage and divorce based upon grievous wrongs, these must be disregarded and the decision confined to the question as to whether the husband was deserted by the wife, or the wife by the husband, for a period longer than one year prior to the commencement of the action.
    “The four letters offered as evidence by the defendant fail to show that she had been deserted by her husband. The one dated May, 1899, addressed to her by the latter, reveals only a temporary separation of the spouses, due to certain causes, but not to desertion by the husband, which implies a permanent separation mensa et thoro by the will of the husband and his refusal of the support to which his wife is entitled. Said letter shows, on the contrary, that it was the intention of the husband to assist his wife with the product of his personal work and to rejoin her as soon as he had finished his studies. As to the letters addressed to Mrs. Walling and Mr. Rivera, they show that Mrs. Moret had lived with, and at the expense of the former, from July 9,1898, to March 14, 1899, and in the house, and at the expense of the latter, for an indeterminate period of time about October, 1899, a date subsequent to that of the alleged desertion. But these letters also show that in December of 1899, when both were written, it was the intention of Moret to pay the expenses incurred by his wife in the above-mentioned houses, as evinced by his solemnly promising Mrs. 'Walling and Mr. Rivera that he would settle with them. And as to the letter addressed by Dr. Moret to his father, it is the most eloquent demonstration that Mrs. Vazquez had not been abandoned by her husband in May of 1899, or, at all events, that the separation had been temporary, the parties reuniting afterwards; for from the context of said letter, signed ‘Enriqueta’ and ‘Simon,’ it is to be deduced that in December of the same year the husband was as much concerned for his wife’s welfare, as he was for his own, he calling her ‘his father’s daughter’ and ‘my poor Enriqueta’; all of which circumstances are in contradiction with the presumed desertion of the wife by the husband.
    “It is a fact that has been substantiated both by the defendant’s evidence (Col. Buchanan’s report) and by that of the plaintiff (Capt. Townsend’s report) that in July of 1901, Moret had entered upon his duties at Cayey as assistant surgeon of the Porto Rico Regiment, and inasmuch as it is the duty of the wife to follow her husband whithersoever he may establish his residence, and it does not appear that there vras any reason which prevented her from joining her husband, it is logically to be inferred that she was not willing to follow him when he removed his residence to Porto Rico, the native liand of both, whither he had returned to fill the position of army surgeon, which he is still occupying. The firm and constant determination on the part of the wife not to live with her husband is made evident since the latter part of 1899, when,, according to Attorney Barnett’s testimony, she had refused to return to her husband’s home. This refusal was persisted in, when, in March, 1902, according to the witness Guerrero, she was again approached for the purpose, on behalf of her husband, and finally by declining to answer the notarial requisition which, at the outset of this action, was made by her husband with a view to arriving at a friendly reconciliation.
    “The aforesaid firm and decided determination on the part of the wife not to live with her husband, and thus comply with the duties imposed upon her by both the natural and civil law, and persisting therein for a longer period of time than one year, constitutes the ‘abandonment’ defined under paragraph 5, section 164, of the revised Civil Code, as one of the causes for divorce.
    “All the points urged by either of the parties not having been rejected, the court is bound to give an equitable decision in the imposition of costs.
    “In view of article 173, and paragraph 5, article 164, of the Civil Code, and such articles of the Law of Civil Procedure and sections of General Order No. 118, series of 1899, as are applicable to the case, we adjudge that we should declare and do declare that the action for divorce was properly instituted, and that accordingly the civil marriage contracted between Simón Moret Muñoz and Enriqueta Váz-quez, on the 9th of July, 1898, in the city of New York, is absolutely dissolved, both spouses being left at liberty to enter into new matrimonial bonds, besides such other legal effects as are consequent upon divorce, with no special imposition of costs. Thus by our judgment, finally rendered, do we pronounce, order and sign. Juan Morera Martínez, Frank H. Bichmond, José Tous Soto.”
    Notice of tlie foregoing decision having been served upon Enriqueta Vázquez, she took an appeal therefrom, which was allowed. The record was ordered to be forwarded to this court, and the parties summoned to appear. Upon their appearance the appeal was conducted under the proper procedure. A day was set for the hearing at which counsel for the parties and the Fiscal, who contested the appeal, presented such arguments as by them were deemed pertinent in support of their respective claims.
    
      Mr. Savage, for appellant.
    
      Mr. del Toro, Fiscal, for the People.
    
      Mr. Hernández López, for respondent.
   Mr. Chief Justice Quiñones,

after making the above statement of facts, delivered the 'opinion of the court.

The findings of fact and conclusions of law contained in the judgment appealed from are accepted.

Moreover, the protests of lack of defense, entered at the hearing by counsel for appellant, cannot be considered, inasmuch as no restraint has been put upon her legitimate means of defense. On the contrary, all the proofs proposed by her and deemed pertinent to her claims were admitted, and more than the necessary time allowed her for the presentation of said proofs, including the direct and cross-examination of the witnesses of the adverse party, whereof she could have availed herself had she been willing to do so. Aforesaid protests of lack of defense cannot, therefore, be justified, especially when they were not entered at the oral trial, nor any demand made for the correction of errors alleged to have been committed in the order of procedure. For these reasons they are to be viewed as having been acquiesced in, and cannot serve as grounds for a reversal of the judgment appealed from.

As for the testimony of witnesses presented by counsel for appellant in his prayer of January 19 last, which testimony was returned to him by order of the court made on the following day, and the filing of which with the record of proceedings, he insisted upon at the hearing, in view of the stage these proceedings had reached when said prayer was presented, the parties being cited for judgment, and the fact, besides, that it is not a question of documentary evidence, but one of evidence of witnesses, not proposed during the trial at the proper time, which testimony, furthermore, had been received without citation, and therefore without the knowledge of the adverse party, said testimony cannot be admitted, because not included in any of the cases in which the taking of evidence can be ordered in second instance, according to article 861 of the Law of Civil Procedure.

In view of the aforementioned legal provisions, we adjudge that we should affirm and do affirm the judgment appealed from, with costs against appellant.

Justices Hernández, Figueras and MacLeary concurred.

Mr. Justice Sulzbacher did not sit at the hearing of this case.  