
    Ex parte Elvira Juana Manuela Joaquina García Fernández, Petitioner and Appellee; Josefa Aguayo Casals, Intervener and Appellant.
    No. 5812.
    Argued Tune 17, 1932.
    Decided November 9, 1932.
    
      Tons So't-o :& Zapaker for -appellant. Qwerr-a-Mowér.agón & S-oldevila for -appellee.
   Mr. Chief Justice Del Toro

delivered the opinion of -the Court.

Phis is an -appeal -taken from a judgment rendered by the District ’Court of Ponce in a proceeding for ■declaration of heirship.

The transcript of the record consists of the following documents: Petition of Elvira Juana Manuela Joaquina García Fernández for declaration of heirship-, motion for' intervention hied by Graciela García y Aguayo and Josefa Aguayo Casals, statement of the case and opinion of the district court, judgment of the court,-and a notice of Appeal filed by intervener.. 'Then there appears a copy -of the statement of the case which, insofar as pertinent for the purpose of this opinion, reads as follows:

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“A trial having been had, the Court rendered judgment on June .'8, 1931.
“From the evidence submitted by the petitioner and the admissions made by the intervener it is shown:
“That Juan García Villarraza, dentist, born in Malaga, Province ■of Andalucía, Spain, was joined in first wedlock to Manuela Fernán-dez, of Havana, by whom he had a legitimate daughter who is the petitioner in this ease, Elvira García Fernandez.
“That on November 29, 1891, after the death of his first wife, •Juan García Villarraza was joined in second wedlock at Ponce, Puerto Nico, to Josefa Aguayo Casals, of Ponce, Puerto Pico, by whom he had a legitimate daughter named Graciela García Aguayo.
“That while domiciled in Ponce, Puerto Rico, and having property there, and being still married to Josefa Aguayo Casals, Juan Garcia Villarraza died intestate in April, 1899, in the city of Para, Brazil, where has was temporarily residing at that time.
CC ft s* if? & * $ #

At the foot of the statement of the case there appears an oath to the effect that a copy of the same has been sent by mail to the attorney for the petitioner, and then the following entry:

“AppR,oval op STATEMENT op the Case: This case came on to be heard upon the motion for approval of the statement of the ease, attorney Fernando Zapater appearing for respondent Josefa Aguayo Casals. Petitioner failed to appear notwithstanding the fact that her attorneys González Fagundo and González Jr. were notified. The Court approves the Statement of the Case. (From the Minute Book, No. 16, first chamber, session of July 28, 1931, Hon. Judge Todd Jr. presiding.) Copy sent to attorneys Gonzalez Fagundo and González Jr., Humacao, and José Tous Soto and Zapater, Ponce.— Attest: E. Gotay Purcell, Clerk, by E. Cornier. — Deputy Clerk.”

The document ends with a certificate of its correctness issued by the attorneys for the moving party and the respondent.

Appellee in her hrief raises the following:

“PRELIMINARY Question. — In this appeal there is no evidence that may be considered inasmuch as the statement of the case filed in the district court, when included in the record on appeal brought to this Hon. Court, did not contain the corresponding certificate of approval nor did it even contain the signature of the judge who heard the case. In order that the statement of the case may be valid and effective it is necessary that the magistrate before whom the trial was held shall have approved the same over his signature. As, these requisites are lacking in this appeal, this Hon. Court is precluded from considering the evidence submitted to the lower court. Section 216 of the Code of Civil Procedure. — Rubio v. Charvounier, 20 P. R. E. 299. — Orama v. Oyanguren, 19 P.R.R. 294. — Axtmayer v. Ortiz, 19 P.R.R. 476. — Calaf v. Calaf 16 P.R.R. 811. — Estate of Blondet et al. v. Fantauzzi Hermanos, 14 P.R.R. 302.”

We think that the appellant is right. Section 299 of the Code of Civil Procedure, as amended in 1911 (Comp. Stat. 1911, p. 902), very definitely provides that, upon giving his approval, “the judge shall certify at the foot of said statement the contents thereof, as approved by him, and in such form it shall become a part of the judgment roll.” Said section also provides that the record on appeal shall be constituted by “the certificate to be issued by the secretary of the court a quo or by the attorneys of the parties, of the judgment roll and of the notification of the appeal.”

From the certificate of the attorneys in this ease there appears only what is said in the Minute Book with respect to the approval. It does not appear that the judge had certified the statement or that the latter, thus authenticated, had become a part of the judgment roll. From the portion of the statement of the case which we have already transcribed it appears that evidence was taken, and that, based thereon and on the admissions of the intervener and of the petitioner, the judgment appealed from was rendered. Such being the ease, there is no basis for entering into a consideration and decision of the appeal, which therefore should be dismissed.  