
    Portela, Plaintiff and Appellant, v. Viera, Defendant and Appellee.
    Appeal from the District Court of Humacao in Injunction Proceedings. — Motion for Dismissal of Appeal.
    No. 2932.
    Decided January 22, 1923.
    Appeal — Transcript—Notiof-.—In this case the motion for dismissal of the appeal because! the transcript of the record was not filed in time was served on the appellant on December 30, 1922, and filed on January 2, 1923. Alleging that the transcript was filed on the said, last date, the appellant opposed the motion under Rule 58 of the Supreme Court. Held: That the date to be considered is not that on which the motion is filed, but that on which notice thereof is given; therefore, in the absence of sufficient causes to justify the exercise of discretion by the Supreme Court to the contrary, the motion for dismissal must be sustained.
    The facts are stated in the opinion.
    
      Mr. F. González, Jr., for the appellant.
    
      Messrs. F. Gervoni and F. Pinero for the appellee.
   Me. Chief Justice Del Toro

delivered the opinion of the court.

This is a motion for dismissal of the appeal for the reason that the transcript of the record was not 'brought up in time.

The judgment appealed' from was rendered on August 29, 1921. On September 8th the appeal was taken and thereafter the stenographer was granted extensions of time for preparing a transcript of the evidence. The last extension expired in December of 1922. The transcript had not been filed nor was any further extension sought for that purpose.

The motion for dismissal is dated December 30, 1922, and was. filed in the secretary’s office of this court on January 2, 1923. An endorsement shows that notice thereof was given tó the appellant on December 30, 1922.

At the hearing on the motion the attorney for the ap ■ péllant alleged that' the transcript had been filed on January 2, 1923, and invoked in his favor Rule 58 of this court which reads as follows:

“58. — If tlie transcript of the record or the brief made by appellants be not filed within the time prescribed the appeal may be dismissed, on motion, after notice given. If the transcript, though not filed within the time prescribed, be on file at the time such notice is given, that fact shall be sufficient answer to the motion.”

It is true that the appellant filed a transcript containing the judgment roll on January 2, 1923, but in accordance with the wording of the rule, the date to be considered is not that of the filing of the motion, but that on which notice thereof is given.

That being the ease, the rule invoked does not favor the appellant, for when notice of the motion was given the transcript had not been filed.

There being no other reason which could justify the court, in exercising its discretion to the contrary, and considering all of the circumstances of the case, the motion for dismissal must be sustained.

Appeal dismissed.

Justices Wolf, Aldrey, Hutchison and Franco Soto concurred.  