
    Manuel Antonio Emanuelli, Petitioner, v. Alberto S. Poventud, Judge of the District Court of Ponce, Respondent.
    No. 393.
    Argued December 23, 1943.
    Decided January 12, 1944.
    
      Cwrlos E. (Jolón for petitioner.
   Mr. Acting Chief Justice Travieso

delivered the opinion of the court.

Manuel Antonio Emanuelli, plaintiff in an action for divorce against his wife Alicia Coll, filed in this Supreme Court a petition praying for a writ of mandamus, directed to Hon. Alberto S. Poventud, Judge of the District Court of Ponce, commanding him that he issue an order for the defendant, who resides in New York, to be served with process by publication.

Prom the petition submitted to us it appears that on December 20, 1943, the respondent judge rendered a decision holding that the issuance of an order for publication of the summons did not lie, because, in his judgment, the complaint did not state facts sufficient to constitute the cause of action relied on.

Rule 4 (e) of the Rules of Civil Procedure (§94, Code of Civil Procedure), cited by the petitioner prescribes as requisites for the issuance of an order for the publication of the summons (a) that it appear by affidavit to the satisfaction of the court or a judge thereof that the person on whom service is to be made resides out of the Island or has departed therefrom, and (b) that it also appear by such affidavit, or by the verified complaint on file, that a cause of action exists against the defendant in respect to whom service is to be made, or that‘said defendant is a-proper party to the action.

In considering and passing upon the sufficiency of the-affidavit and the sufficiency of the facts alleged in the verified complaint to constitute a cause of action, the court or judge thereof exercises a judicial discretion and does not perform a ministerial duty. In order that the service by publication may be effectively ordered, it is necessary that §94 of the Code of the Civil Procedure, now Rule 4(c) of fhe Rules of Civil Procedure, be strictly complied with. Miranda v. Heirs of Alicea, 52 P.R.R. 247.

The complaint filed in this case is not verified, and the affidavit presented to the lower court in support of the motion for publication of the summons has not been submitted for our consideration. But even if its contents were known to us and we regarded it as sufficient, we would not be warranted in issuing a writ of mandamus commanding the respondent judge to change his judicial discretion so as to conform it to onrs. The writ of mandamus has not been created for that purpose.

The petition must be denied.

Mr. Justice Snyder did not participate herein.  