
    Lecler v. Olivieri.
    Appeal from the District Court of Mayagüez.
    No. 44.
    Decided February 15, 1904.
    Nullity op Proceedings — Declaratory Actions — Incidental Issues. — Petitions for the nullity of proceedings presented in an executory action and in compulsory proceedings still pending cannot be made the basis of a declaratory action, but may be the basis of an incidental issue in a proper ease.
    Id. — No incidental issues can be raised in executory actions other than those based upon questions of jurisdiction or arising from the consolidation of universal proceedings.
    STATEMENT OP THE CASE.
    This is an appeal taken by Guadalupe Lecler y Diendoné de Yurnet, in a declaratory action brought by her in the District Court of Mayagüez, against Eicarda Olivieri de Capi-fali, for nullity of proceedings, appellant being represented in this Supreme Court by Attorney Ignacio Delgado.
    On the 20th of March, 1903, Guadalupe Lecler y Diendoné de Yurnet, through her counsel, Ignacio Hidalgo, brought an action in the District Court of Mayagüez against Eicarda Oli-vieri y Capifali, praying that after the proceedings of a declaratory action had been had, judgment be in due time rendered declaring null and void all the proceedings had since the 29th of October last in an executory action against her, commenced by Joaquin Tornabells, as assignee of Teófilo Olivieri, and afterward continued by the latter’s sister Ei-carda, as assignee of Tornabells, with costs and damages against the party defendant, alleging that inasmuch as the action had extinguished, the case could not he opened anew, and that Tornabells’ assignment to Eicarda Olivieri had been made without complying with the provisions of article 1535 taken in connection with article 1536 of the old Civil Code.
    By order of the Mayagüez court the clerk thereof certified that the executory action referred to had been instituted by Joaquin Tornabells, as assignee of Teófilo Olivieri, and prosecuted by him up to March 27, 1899, the same being continued on the 29th of October, 1902, by Eicarda Olivieri de Capifali, as assignee of Tornabells, until the 16th of February, 1903, when the proceedings for judicial compulsion were suspended owing to the intervention of ownership interposed by Darío Eeyes.
    On the 31st of March last, the Mayagüez court made an order dismissing the complaint, and a motion for a rehearing having been made by counsel for Guadalupe Lecler, the same was also overruled on the 14th of April following.
    From both the orders of March 31 and April 14, Guadalupe Lecler entered an appeal, which was allowed. The papers having been forwarded to this Supreme Court, after citing the party appellant, the appeal was conducted under the proper proceedings, and a day set for the hearing, which was had, no counsel being present.
    
      Mr. Hidalgo, for appellant.
    The respondent did not appear.
   Mr. Justice Hernández,

after making the above statement of facts, delivered the opinion of the court.

The issue raised in the action brought by Guadalupe Le-cler has reference to the annulment of the proceedings in the compulsory process, which is still pending in connection with the executory action instituted against the plaintiff, and, therefore, it cannot be'made the subject-matter of a declaratory action, but, in the proper case, that of an incidental issue,, according to articles 741 and 744 of the Law of Civil Procedure, which also prescribes the proceeding for the prosecution thereof. Such incidental issue, however, would be inadmissible, inasmuch as in executory actions no incidental issues can be raised other than those based upon questions of jurisdiction or from consolidation of universal proceedings, according to article 1478 of aforesaid Law of Procedure.

Having examined the aforementioned legal provisions, the order of the 31st of March last, appealed from, and the one concordant therewith — that of the 14th of April following— are affirmed, with costs against appellant.

With a certificate of this decision, the record of the District Court of Mayagfiez is ordered to be returned for proper action.

Chief Justice Quiñones and Justices Figueras and Mac-Leary concurred.

Mr. Justice Sulzbacher did not sit at the hearing of this case.  