
    Narciso Pagán, Plaintiff and Appellant, v. Heirs of Eulalio Rosaly y Vázquez, Defendants and Appellees.
    No. 4012.
    Argued November 8, 1926.
    Decided January 14, 1927.
    
      Agtistin E. Font and-Ads Villar ong a for tbe appellant. Arjona & Arjona for tbe appellees.
   Mr. Justice Wolf

delivered the opinion of the court.

In the District Court of Ponce a filiation action was begun by a natural child. After various preliminary motions an amended answer was filed. The complainant moved against this answer and his objections, it seems, were overruled. The amended answer was filed along with a demurrer and the apellee contends that the case was submitted on the pleadings. The demurrer and answer raised two propositions; one was that the action bad prescribed, and the other was that a previous suit rendered res adjudicaba the action now presented. The district court decided in favor of the defendants on both issues. An appeal was taken which the appellees now move to dismiss.

The first ground is that the appellant has not furnished us with a sufficient record. The theory is that the court, in finding res judicata, examined a previous record of the court to ascertain whether there was identity in the two actions and that the appellant failed to make part of the judgment roll in this case the facts evidenced in the said previous suit. As we see the record now and as we read the briefs or manifestations of the parties, the case was submitted to the court on the complaint, answer and demurrer, and it would seem that the court had no right to consider a question of fact not within the submission. We strongly incline to this view, although we might be convinced to the contrary, but even if the matter were more doubtful we should be disposed to permit the appellant to cure the supposed defect in the proper way.

This is an extraordinary appeal, given the pleadings, but the rule generally is that an appeal may not be dismissed because an appellant has not incorporated the evidence, inasmuch as the pleadings may be examined.

The second ground alleged for dismissal is that the brief of the appellant fails to comply with the rules of this court. This we find to be true. There is no assignment of errors. There is no concise statement of the facts as required by Rule 41. Nevertheless, a reading of the short brief of the appellant, and made necessary in this case, raises a doubt in our minds, not only with regard to res adjudicaba, as indicated before, but also on the other issue, namely, the prescription of the action. We have purposely refrained from carefully considering whether the various codes and their transitory provisions have kept alive the right of the appellant to bring this action, as we should like to hear both sides. However, if appellant is right, a fundamental error has been committed. Under the circumstances the motion to dismiss will be overruled conditioned upon the appellant’s, within ten days, filing a new brief to comply with the rules of this court. Otherwise the appeal will be dismissed.

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