
    Betancourt, Petitioner and Appellee, v. Board of Awards of Río Grande, Respondent and Appellant.
    Appeal from the District Court of San Jxian in Mandamus Proceeding’s. — Memorandum of Costs.
    No. 2542.
    Decided March 20, 1922.
    Mandamus — Costs—Temerity.—A municipal board of awards appealed from a judgment for costs in this ease, in which after both parties had rested the said board agreed to comply with a conditional writ of mandamus issued at the instance of a bidder who alleged in his petition for the writ that he had customarily taken part in the auctions until the defendant denied his right to make bids. Held: That the temerity of the respondent justified the judgment for costs and that consequently it was not necessary to allege that demand had been previously made upon the board to admit the bids of the petitioner.
    The facts are stated in the opinion.
    
      Mr. J. Soto Rivera for the appellant.
    
      Mr. L. S. Vahamonde for the appellee.
   Mr. Justice Aldrey

delivered the opinion of the court.

Luis Betancourt presented a petition to the District Court of San Juan, Section One, alleging that without any reason the Board of Awards of the Municipality of Rio Grande, composed of Ramón M. Figueroa, Luis Pimentel and Eugenio Andrade, refused to consider his bids in the auctions for the privilege of supplying fresh meats and prayed for a writ of mandamus to compel the board to admit his bids. An alternative writ was issued setting a day for the respondents to appear and show such cause as they had for not complying with the order and on that day, after both parties had examined their evidence, the respondents made a motion confessing judgment and asking to be relieved from the payment of the costs. Thereafter the court entered judgment granting the peremptory writ of mandamus and imposing the costs upon the respondents. The respondents took this appeal from the judgment imposing the costs upon them.

In view of the confession of judgment by the respondents the only question that the trial court considered in its opinion was that of the costs, and it imposed them upon the respondents on the ground that from the pleadings and the evidence examined it appeared that their temerity was what forced the plaintiff to resort to this proceeding for the purpose of protecting his rights and as the proceeding is a special one, it is imperative that costs should be allowed to the successful party.

It is true, as maintained by the appellants in discussing the first ground of appeal, that the courts are not bound to allow costs in special proceedings since the enactment of Act No. 38 of April 12, 1917, as was held by this court in the case of Candal et al. v. Vargas et al., 29 P. R. R. 603, and the case therein cited, but the lower court considered also the temerity of the respondents in imposing .upon them the payment of the costs.

We understand that the court did not err in finding that there was temerity on the part of the respondents, as maintained by the appellants, for the reason that it was not alleged in the complaint that demand had been made upon the respondents to admit the bids of the petitioner. Such a demand was not necessary in this case in which the petitioner alleged that he had customarily taken part in the auctions until the respondents refused to allow him to do so notwithstanding the bids presented by the petitioner. On the other hand, the conduct of the respondents in not complying with the court’s order and in waiting until after both parties had rested before confessing judgment, shows temerity, for if under the advice of their attorneys they had complied with the writ of mandamus, or if there were no auctions at the time they had declared their willingness to comply with it, they would have avoided causing annoyance to the court and to the petitioner who would not have been put to the trouble of appearing at the’ trial and presenting his evidence.

The judgment, in the matter of costs which is the object of the appeal, must be

Affirmed.

Chief Justice Del Toro and Justices Wolf and Hutchison concurred.  