
    José Catalino Negrón, Plaintiff and Appellee, v. Manuel Miguel Mudafor, Defendant and Appellant.
    No. 6754.
    Argued July 9, 1934.
    Decided July 11, 1934.
    
      V. Géigel Polanco for appellant. Angel A. Vázquez for appellee.
   Mr. Justice Córdova Davila

delivered the opinion of the Court.

José Catalino Negrón brought a complaint in the Municipal Court of San Juan against Manuel Miguel Mudafor, claiming a homestead right. Judgment for plaintiff was rendered for the amount of $500. The defendant appealed to the district court, were the appeal was dismissed as having been filed after the 20 days fixed by law for the filing of the transcript of the record in the appellate court had elapsed. The defendant appealed from this order of the district court and the plaintiff now appears praying that the appeal taken be dismissed on the ground that said order, which does not pass upon the merits of the action, is not ap-pealable and further that the appeal is entirely frivolous.

The question which the appellee submits to our advisement has already been decided by this Court in Marxuach v. Aguilar et al., 20 P.R.R. 146, where an appeal was taken from a judgment of a municipal court which the district court dismissed on the ground that the twenty days fixed by law for the filing of the record in the appellate court had elapsed. The interested party appealed from said order and this Court dismissed the appeal, on the ground that the same was not appealable. From the opinion delivered by this Court in said case we copy the following:

“Decisions rendered by courts dismissing appeals because of the failure of appellants to comply with certain requisites in order to be heard, are not actual judgments although they are entered as such and have the effect of affirming the judgment appealed from, because they do not go to the merits of the case but are only a refusal to hear and decide the appeal. Harrington v. Holler, 111 U. S., 796; Wenar v. Jones, 217 U. S., 593, applied by us in the case of Cautiño et al. v. Muñoz et al., 19 P.R.R. 1010. Consequently these decisions are not included among the judgments referred to in subdivision 2 of Section 295 of the Code of Civil Procedure as amended, in the year 1905.”

The appeal taken must he dismissed.  