
    Kuinlan v. Melendez.
    Appeal in cassation from a judgment rendered by the District Court of Arecibo.
    No. 31.
    Decided November 3, 1902.
    Appeal in cassation. — An appeal in cassation lies for error of procedure based on a refusal to hear evidence, providing such evidence is admissible, and the failure to admit the same may have deprived the party of his defense.
    Evidence oe confession. — Evidence of confession should be requested in writing, and the interrogatories, in reply to which such evidence is to be given, should be set out in full; if such requirements are not complied with, the evidence is not admissible, nor can it be said that a failure to take such evidence did or did not deprive a party of his defence; therefore the appeal based on this ground does not lie.
    STATEMENT OE THE CASE.
    Don Gregorio Kuinlan brought suit in the District Court of Arecibo on the 7th of October of last year, against Don . Gumersindo Melendez, partner in and successor to, the mercantile firm of Melendez Hermanos, of Manatí, praying that the said Melendez be adjudged to pay to the plaintiff, as endorsee of a promissory note made by the said firm on the 30th of May, 1886, in favor of Doña Antonia Delgado, the sum of one thousand two hundred and forty dollars and thirty-two cents, American money, as principal and stipulated interest, up to the 30th of September, the month preceding the institution of the suit, and in addition the interest accruing on the interest from the date on which the said complaint was filed to the date of payment, and the costs of the proceeding. In support of the claim, the aforesaid promissory note was attached to the complaint, and is for the sum of one thousand pesos of the money current on the date the note was made, the .said note falling due on the 30th of March, 1886, and payable in monthly installments of one hundred pesos, with interest at one per cent until the satisfaction of the debt on maturity. Don Gumersindo Melendez answered the complaint, praying that the same be dismissed with costs against the plaintiff, and while admitting the authenticity of the promissory note, alleged that the mercantile firm of Melendez Hermanos had ceased to exist in the month of November, 1885, the same having gone into bankruptcy, and that since then the defendant has not been engaged in business; and moreover that any action which could be brought against the members of the said mercantile firm, was barred by the statute of limitations.
    Both parties having requested that evidence be introduced on the trial, the Arecibo Court made an order on the 12th of November of the year last passed, summoning the parties to appear on the 3rd of December following, at which time plaintiff and defendant should appear, and bring in writing all of the evidence which they might wish to introduce; but at the request of both parties the hearing was postponed until another date should be set therefor, and on the 4th of January, at the request of Kuinlan, the 24th day of the said month was set for the introduction of evidence in the manner prescribed in the order of the 12th of November; and as the parties failed to appear, in view of the provisions of Rule 54 of General Order No. 118, Series of 1899, an order was made on the same day setting the 26th of February for the public hearing of the case, at which hearing counsel “should state their clients’ cases”. The plaintiff in a petition, dated the 29th of January, prayed the Court to summon Don Gumersindo Melendez to appear on the day of the hearing, in order that he might testify in reply to the questions which might be put to him at the time, which petition was granted by the Court in an order dated the following day; and the hearing having been postponed until the 19th of March, Kuinlan petitioned the Court to summon the defendant, for the purposes already stated, the .said petition being denied by the Court, by order of the 12th of March, on the ground that the evidence of confession was not proposed in due time, and because the object of the public hearing provided for by Rule 54 of General Order No. 118, is that counsel shall “state the cases of their ■clients”.
    On the entering of this order the plaintiff made a motion for a reconsideration, which motion was overruled by the Court, and counsel for Kuinlan took an exception thereto.
    The Arecibo Court by a judgment rendered on the 25th of March, last, exonerated Don Gumersindo Melendez from all liability, as partner and successor of the mercantile firm of Melendez Hermanos, under the suit filed against him by Kuinlan against whom the costs of the proceeding were taxed.
    From thisjudgmentDon Gregorio Kuinlan took an appeal in cassation for error of procedure, and error of law, the former which is the one now under consideration, being authorized by paragraph 5 of article 1691 of the Law of Civil Procedure, and being based on the refusal of the Court to allow the introduction of the defendant as a witness to confess in court, which evidence it is alleged, was admitted by a final order dated the 30th of January, last, and without which evidence the plaintiff cannot prove his case, the proper exception having been taken for the preparation' of the appeal.
    
      Mr. López Lanclrón, for appellant.
   Me. Justice Heewandez

delivered the opinion of the Court: According to the provisions of paragraph 5 of article 1691 of the Law of Civil Procedure, in order that an appeal in cassation may lie for error of procedure, based on-a refusal to hear evidence, it is necessary that such evidence shall be admissible according to law, and that the failure to admit the same may have left a party without a defence.

The confession to be made by the defendant, which the Arecibo Court refused to hear was not admissible in evidence, inasmuch as it was not presented in writing in accordance with the provisions of Rule 52 of General Order No. 118, Series of 1899; and since the interrogatories upon which it was to be based had not been prepared, it cannot be • said that the lack of such evidence did- or did not prevent the plaintiff from proving his case; the appeal therefore does not lie, since it fails to come within the legal provision upon which it is based.

We adjudge that we should declare, and do declare, that the appeal in cassation for error of procedure taken by Kuinlan, does not lie, and the costs of this proceeding are taxed against the said Kuinlan. This decision will be communicated to the trial Court; and the- attention of the Court will be in due time directed to the appeal for error of law for the determination thereof.

Messrs. Chief Justice Quiñnes and Associate Justices Fi-gueras, Sulzbacher and MacLeary concurring.  