
    Ignacio Delgado, Plaintiff and Appellee, v. Arturo Roger and his wife María de Pool, Defendants and Appellants.
    No. 8033.
    Argued January 8, 1940.
    Decided January 12, 1940.
    
      B. Ramírez Babón, for appellants; Virgilio Brunet and Miguel A. Ca-siano, for appellee.
   Mr. Chife Justice Del Toro

delivered the opinion of the Court.

The appellee requests the dismissal of the appeal filed in this case for lack of diligence. The appellant opposed appellee’s motion in writing and orally on the 8th of January when the motion was heard and the parties appeared by their attorneys.

From the record it appears that the appellant on July 6, 1939, came to this Court praying for a new term to file the transcript because the stenographer had allowed the term to elapse 'by one day without requesting the necessary extension of time. To this motion an affidavit of merits was attached and this Court granted the new term requested.

The district court continued to grant extensions on motion of the stenographer, the last of which was granted on January 2d of this year. Therefore, the completion of the appeal is still pending in said conrt.

Notwithstanding these facts, the appeal could be dismisr sed, in keeping with the manner in which Eule 59 of the Eules of this court, 17 P.R.R. LXXVI, is phrased, to wit: “After the expiration of ninety days from the time of the notice of the appeal, and even if any extension of time has been allowed by the court below, any case not previously filed in this Court may, in the discretion of the Court, be dismissed . . . if it be shown satisfactorily that the appellant has not prosecuted . . . with due diligence . . .,” and we would be inclined to do so were it not that one of the documents attached to the appellant’s answer shows that the stenographer, to prove that he is really preparing the transcript, filed the part of it that he had finished on January 7th of this year, consisting of 112 typewritten pages.

For the foregoing reasons we will make use of our discretion and not dismiss the appeal, but will allow the ap-pellee to file his motion anew a month from today if the appellant does not perfect his appeal by filing the record with the Clerk of this Court.  