
    Martinez v. Cebollero.
    Appeal from the District Court of Mayagüez.
    No. 52.
    Decided October 30, 1903.
    Taxation of Costs — Counsel Fees. — All expenses incurred in an adjudication, including counsel fees, are properly taxable against the party adjudged to pay the same.
    Lawyers. — Rule 48 of General Order 118, series of 1899, providing that litigants must be represented by a lawyer, is in force as to this part and should not be understood as having been repealed by General Order 134. Costs — Objections to Taxation. — Only when items not chargeable to the defeated litigant are included in the taxation of costs can an objection thereto be prosecuted as an incidental issue.
    STATEMENT OF THE CASE.
    This was a declaratory action prosecuted in the District Court of Mayagüez by Victor Martinez against Maria Moreno Cebollero, to obtain the cancellation of an attachment, and an incidental issue in regard to the taxation of costs against the plaintiff, which latter is pending before us on appeal in cassation for error of law, now on appeal, taken by Victor Martinez, who has been represented and defended before this Supreme Court by his counsel Rafael López Landrón, the respondent being represented and defended by Antonio Manrique de- Lara.
    A declaratory action having been brought in the District Court of Mayagüez by Victor Martinez y Martinez, against Maria Moreno, for the cancellation of an attachment, on November 26, 1902, the court dismissed the complaint with costs against plaintiff, and when said costs were taxed counsel for Victor Martinez objected to the item of fees and supplies charged by Antonio Manrique de Lara, Esq., amounting respectively to three hundred and eighty-five dollars and eleven dollars and fifty cents, which items aggregate three hundred and ninety-six dollars and fifty cents, and prayed that the incidental issue thus raised be entered, that the adverse party be notified thereof and that in due time the memorandum of Mrs. Moreno’s counsel be declared excessive and that the. addition of aforesaid items he disallowed, together with such other findings as might he in accordance with law.
    Upon the exception to the taxation of costs an order was made on April 2, 1902, which in the portion relevant hereto reads: “It appears that the items objected to represent respectively attorney’s fees and supplies, and only' where the party against whom costs have been taxed is not called upon to pay such items, can an incidental issue be raised, according to article 426 of the Law of Civil Procedure and Rule 64 of General Order No. 118, series of 1899. The foregoing objection is ordered to be submitted to Antonio Manrique de Lara, for a period of two days, in order that he may file such answer thereto, as by him may be deemed proper.”
    From the foregoing order counsel for Victor Martinez moved for a reconsideration, which motion was disposed of by an order of April 14 in the following words:
    “The plaintiff, Martinez, having been required by a judgment which became final, to pay all the costs of the proceeding, the opposite party requested that said costs be taxed, and filed a memorandum of Manrique de Lara’s fee, a receipt from the Registrar of Property for cost of certificate) (folio 72) and included the charges of the cost of Internal Revenue stamps that had been supplied by said party (folios 76, 79 and 90)”.
    “In compliance with said request the clerk drew up a memorandum of costs, including the attorney’s statement of his fees and other supplies vouched for and the same being submitted to the parties, Martinez raised an incidental issue, praying that the statement of Maria Moreno’s attorney be declared excessive and that the items added thereto ^as therein specified, be disallowed, whereupon the court, for the reasons set forth in its order of the 2nd instant, decided that aforesaid objection be submitted to' Manrique de Lara for the legal period”.
    “Martinez then moved for a reconsideration on the grounds alleged in the petition of the 4th instant, which motion was opposed by the other party”.
    “Article 421 of the Law of Civil Procedure expressly provides that the taxation of costs shall be made Including therein all the costs comprised in the adjudication, and incurred up to the time of the taxation”.
    “The clerk did not include in the taxation of costs any items of dues or fees the payment whereof does not devolve upon the party against whom judgment was rendered, inasmuch as those comprised therein are duly substantiated, as may be seen by merely glancing at the record, being such as are mentioned under rule 64 of General Order No. 118, series of 1899, which determines the legal expenses necessarily incurred as a direct consequence of litigation, in addition to attorneys’ fees”.
    “Rule 48 of aforesaid Order providing that litigants must be represented by counsel is in force as to this particular and should not be understood as having been repealed by General Order No. 134, providing how litigants shall be represented, as a result of the abolition of the practice of solicitors, which is an entirely different question from that of acting as counsel for the parties”.
    “Only when items of dues or fees not chargeable to the defeated litigant are included, can an objection be prosecuted as an incidental issue, and this is not the case now for the reasons above set forth”.
    “We therefore declare that the motion for a reconsideration of the order dated the 2nd instant, on behalf of Victor Martinez, does not lie, and impose upon him the costs of these proceedings”.
    From the order of April 2 Victor Martinez, having filed and appeal in cassation which was refused, resorted to the remedy of complaint before this Supreme Court, which was ordered to he admitted.
    The remedy of complaint being admitted and treated as an appeal, as prescribed by the Act of March 12, 1903, the hearing thereof took place, counsel for appellant being present and offering such arguments as were by him deemed proper.
    
      Mr. López Laoidrón, for appellant.
    
      Mr. Manrique de Lara, for respondent.
   Me. Justice MacLeaky,

after making the above statement of facts, delivered the opinion of the court as follows:

The conclusions of law contained in the order of April 2, 1902, and of the order dated April 14, 1902 are acepted.

We adjudge that we should affirm and do affirm the order appealed from, dated April 2, 1902, and the order dated April 14 of the same year, with costs against appellant.

The record is ordered to be returned to the Distinct Court of Mayagiiez, together with a copy of this decision, for the proper purposes.

Chief Justice Quiñones and Justices Hernández and Sulz-bacher, concurred.

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