
    Gustavo Marcano, in representation of his minor son Casimiro Marcano, Plaintiff and Appellee, v. Zoilo Méndez. Defendant and Appellant.
    No. 3836.
    Argued January 25, 1926.
    Decided March 31, 1926.
    
      Fernando B. Fornaris for the appellant. Luis Pereyó, Jr., for the appellee.
   Mr. Justice Wole

delivered the opinion of the court.

In a ease wherein an appeal was taken on the 22nd of May, 1925, and various extensions were granted to prepare the stenographer’s notes- of the evidence under acts of 1917 and 1919, on the 10th day of December, 1925, the appellant presented a motion to the District Court of Humacao to-compel the stenographer finally to transcribe the said notes. The court ordered the stenographer to present his notes without delay. On the 9th of January, 1926, apparently when the latest extension was about to expire, the stenographer ashed for a further extension due to his intense work and the length of the evidence in the particular case. The court on the 12th of February, 1926, overruled the motion of the stenographer. The appellant says that he had tendered or paid the stenographer his 'fees and had done all in his power to speed the case.

This is a case where the court within its discretion refused to extend the stenographer’s time. From the order refusing to extend the time no appeal was taken. "We might possibly have reviewed the discretion if such an appeal was taken. As it is the action of the court must be considered as res adjudicata.

The appellee has moved to dismiss because the record of the case has not been filed. The appellant urges upon us that under the Act of 1919 the delay of the stenographer should not deprive the appellant of his right of appeal, but we have frequently decided that when there is no existing hill of exceptions or transcript of the evidence the lack must be ascribed to the appellant.

In the hearing counsel made some request that this court exercise its discretion to permit the filing of the stenographer’s notes, but, as we have said, this case involves the use of discretion by the court below and no appeal was taken from the order denying the extension.

The appeal will be dismissed.  