
    Trautman, Plaintiff and Appellee, v. Trautman & Acha, Defendants and Appellants.
    Appeal from the District Court of Ponce in an Action of Debt. — Motion for Dismissal of Appeal.
    No. 2676.
    Decided December 12, 1922.
    Appeal — Attachment—Pinal Judgment. — There is no incompatibility between section 14 of the Act to secure the effectiveness of judgments and subdivision 3 of section 295 of the Code of Civil Procedure;' therefore, the fact that an appeal from an order refusing to dissolve an attachment was taken ten days after it was entered, is no ground for the dismissal of the appeal.
    Id. — Id.—Statement op Case. — An appeal from an order refusing to dissolve ' an attachment will not be dismissed on the ground that the proceedings in which the court below entered the order appealed from were not brought up to this court in the form of a statement of the case.
    The facts are stated in. the opinion.
    
      Messrs. E. Rincón and L. Visca,rrondo for the appellant.
    
      Mr. E. Flores Colón for the appellee.
   Mb. Justice Fbanco Soto

delivered the opinion of the court.

This was an action of debt wherein upon filing his complaint the plaintiff moved fo'r and was granted an attach-' ment to secure the effectiveness of the' judgment. After the attachment had been levied on certain real property of the defendants the incident arose in which the said defendants moved the lower court to dissolve .the attachment so levied and the motion' was overruled. Judgment was rendered sustaining the complaint and the defendants appealed not only from the final judgment, but also from the order of the' court overruling the motion to dissolve the attachment.

It will be readily understood now that the appeal from, the interlocutory order regarding the attachment was taken together with the appeal from the final judgment, and in this the defendants only followed the provisions of section 14 of the special Act to secure the effectiveness of judgments of March 1, 1902, which reads as follows:

“All allegations made by either party* in the course of the proceedings regarding the remedy, shall be substantiated, notifying the other party by means of a summons to appear before any of the judges, each party having then an opportunity to produce their proofs. The court shall immediately decide the question, but in no case shall the incidental questions interfere with the course of the proceedings in the principal question or suit. Not , more than five days shall elapse between the time the summons is served and the appearance of the parties at the hearing, which shall not be suspended for any reason. Every decision of the court shall immediately be carried into effect, but the injured person may protest and declare his intention to take an appeal, as provided in the law of civil procedure, against the final judgment of the court.” Acts 1902, p. 166; Comp. 1911, see. 5246.

Perhaps some doubt might he created by subdivision 3 of section 295 of the Code of Civil Procedure which provides that an appeal may be taken from an order dissolving or refus' ing to dissolve an attachment within ten days after the order or interlocutory judgment is made, and, of course, if that provision alone should be applied, the appeal would have no-support, but from an examination of different cases decided by this Supreme Court on the same question involved in the motion for dismissal, among which may be cited Ex Parte Bolivar, 12 P. R. R. 261; Veve v. Esperanza Central Sugar Co., 13 P. R. R. 250; Roig v. Landrau, 29 P. R. R. 294, and Armstrong & Co. v. Irizarry, 29 P. R. R. 563, we have reached the conclusion that it has been established by implication that there is no inconsistency between section 14 of the Attachments Act of March 1, 1902, and section 295 of the Code- of Civil Procedure, and that either may be followed for the purposes of an appeal from an order dissolving or refusing to dissolve an attachment.

After what was held impliedly and the question having-been clearly and definitely raised in this case, we think that there is no legal reason for changing the practice adopted! of electing between the two forms of appeal authorized bylaw from orders dissolving or refusing to dissolve attachments.

Por that reason, and the appellant having- elected one of the means prescribed by law for appealing in attachment ' proceedings, we are not inclined to dismiss the appeal on that ground.

The second ground of the motion, that the certiorari proceedings instituted by the defendant in this court for reviewing the order of the lower court in the matter of the attachment settled the question on its merits,’is entirely erroneous. On the contrary, the question was left undecided, this court holding that certiorari was not the proper remedy’ for reviewing the interlocutory order of the lowér court, the' remedy being the appeal taken in the event that the writ of certiorari should not be granted. .

The second part of the motion, that certain portions of the record be stricken out, must also be overruled. The portions referred to in the motion are the proceedings in the court below preliminary to the order relative to the attachment, and the purpose of the defendants in including them in the record being to have the order reviewed, it is not necessary that these proceedings should be included in a statement of- the case in order that they may be brought up to this court. '

■ For1 all of the foregoing reasons the motion of the ap ■ ,pellee should be overruled on its two points.

Motion overruled.

Chief Justice Dél Toro and Justices Aldrey and Hutchi-son concurred.

Mr. Justice Wolf took no part in the decision of this 'case.  