
    Pastor v. Luzunaris et al.
    Appeal from the District Court of Humacao.
    No. 89.
    Decided March 17, 1904.
    Intervention. — Where it appears from the documentary evidence introduced upon the trial of an aetion of intervention that plaintiff has no title which could serve as the "basis for his claim, the same should be dismissed.
    Id.- — -Costs.—The trial court having rendered a judgment for costs in favor of a party in an incidental matter involving the annulment of the proceedings, and such judgment being subsequently reversed by this court with respect to the taxation of costs, the party recovering said judgment cannot avail himself thereof as the basis of a preferred claim in an action of intervention of better right.
    Id. — Postponement op Hearing — Defense.—The period for taking evidence and the hearing of the arguments of counsel being two different stages of the proceedings, the denial by the trial court of a postponement of the hearing on the ground of the absence of counsel is not error precluding a party from presenting his defense, especially where it is shown that all the evidence had been taken, or that said party was guilty of negligence in liroeuring a portion of the same.
    STATEMENT OE THE CASE.
    This is a complaint in intervention of preferred right, prosecuted in the District Court of Humacao by Ramón Pastor Diaz, plaintiff, against Attorney Plerminio Diaz Navarro and Carolina Luzunaris y Dominguez, defendants, which case is pending before us on appeal in cassation, now ordinary appeal, from the judgment rendered thereon, taken by the plaintiff, who is represented in this Supreme Court by Attorney Antonio Alvarez Nava, respondents being represented by -Attorney Juan de Guzmán Benitez.
    The aforesaid judgment reads as follows:
    “ Judgment. — In the city of Caguas, May 26, 1902. A hearing was had of the complaint in intervention of preferred right, prosecuted by Ramón Pastor Diaz, plaintiff, represented by Attorney Juan Hernández López, against Attorney Herminio Díaz Navarro and Carolina Luzunaris Dominguez, defendants, the former on his own behalf and the latter represented by said Diaz Navarro.
    “On January 20, 1902, Attorney Juan Hernández López, on behalf of Ramón Pastor Diaz, brought an action in this court against Attorney Herminio Diaz Navarro and Carolina Luzunaris Dominguez, asking that the price or value of the house of the latter, attached by the former for the recovery of his fees in the divorce suit brought by Carolina Luzunaris against her husband, Ramón Pastor Diaz, a public sale of which had been ordered, be deposited until judgment in the complaint in intervention had been rendered, and that it be finally adjudged that his client, Ramón Pastor Diaz, was a preferred creditor with respect to the defendant Diaz Navarro, in the property of Carolina Luzunaris that had been levied upon by the said Diaz- Navarro, and that such other declarations be made as were pertinent to the case, with costs against defendants. He alleged the following facts: That Attorney Herminio Diaz Navarro, on behalf of Carolina Luzunaris Domínguez, a minor, accompanied by her legitimate father, Manuel Luzunaris, had brought an action for divorce in this court, on August 8, 1901, against Ramón Pastor Diaz, praying that the divorce sought be finally granted and the marriage bond dissolved, together -with sucb other declarations as might be pertinent; that after the complaint had been answered by counsel for Diaz, and the evidence offered, at the oral and public hearing, the court, in conformity with the dilatory exceptions entered by the defendant, bad rendered judgment on November 13, 1901, vacating all tbe proceedings bad from tbe time wben the intervention and citation of tbe Department of Public Prosecution bad been omitted, with costs of said proceedings against tbe plaintiff, matters being restored to tbeir original state, and complainant left at liberty to make use of her right according to established procedure; that after said judgment and imposition of costs against tbe party complainant, her counsel, Herminio Díaz Navarro, filed a bill for bis fees, amounting to two thousand dollars, with tbe request that bis client, Carolina Luzu-naris Dominguez, be required to satisfy the same, under pain of compulsory procedings; that complainant having failed to pay said fees at tbe instance of her aforesaid counsel, an -attachment was levied upon a bouse belonging to her, situated in Calle Nueva, G-uayama, and a public sale thereof decreed, to take place January 21, 1902, the municipal court of Guayama being commissioned to bold said public sale; that meanwhile counsel for complainant bad taken an appeal in cassation from aforesaid judgment, which was admitted and the record transferred to the Supreme Court, where said appeal was pending; and that consequently his client was entitled to recover costs from Carolina Luzunaris, pursuant to aforesaid judgment of the district court.
    “Notice of said complaint was served upon Attorney Herminio Díaz Navarro and Carolina Luzunaris Dominguez, who answered praying that it be dismissed, with costs against the complainant in intervention, and setting out the following facts: That an action for divorce having been instituted by Carolina Luzunaris against her husband, Pastor Diaz, the latter had, at the outset of the trial, entered a dilatory exception of nullity of proceedings based on the fact that the Fiscal had had no intervention in said proceedings; that by judgment rendered November 13, 1901, said incidental issue was declared to be well taken, with costs against complainant, who, deeming that the imposition of costs was not pertinent, had taken an appeal in cassation from said decision, which appeal had not yet been heard and decided; that before said appeal had been entered, he (Diaz Navarro) had filed at aforesaid trial of the divorce suit, a claim against Carolina Luzunaris amounting to two thousand pesos, 
      for fees earned in said trial, praying that she be required to satisfy the same within a period of time to be specified; that in case of default, an attachment be levied upon her property in sufficient amount to cover said sum, and that the municipal judge of Giiayama be adequately commissioned for the purpose, until the termination of the compulsory proceedings; that an order issued acceding to said petition; that notice of said order was served upon counsel for Pastor Diaz in aforesaid divorce suit, who had acquiesced therein, and the proper writ having been issued to the municipal judge for the execution thereof, Carolina Luzunaris, who was judicially in the custody of her mother and, therefore, beyond the authority of her husband, was summoned to pay, .but without any result, whereupon the following property was attached: a double bed with its quilt and wire mattress, a set of household furniture consisting of a pair of pier glasses, twelve chairs, four easy chairs, two lounging chairs and a center table with marble slab, a cedar wardrobe, a black rattan toilet bureau and an iron single bedstead with wire mattress, a small cedar table, and a single-story wooden zinc-roofed house, situated in Calle Nueva, Guayama, bounded by Calle de San Fernando in entering on the right; on the left by a vacant lot belonging to Rodríguez Lafuente, and in the rear, by the house of Juan Ignacio Capó; aforesaid realty had been acquired by Carolina Luzunaris prior to her marriage, that is to say, on July 28, 1898, by purchase from Celestino Domínguez, according to deed executed before Notary José Mariano Capó; that cautionary notice of attachment, as to said house, had been entered at the Registry of Property of the district, at folio 137 (reverse side), of volume 18, Guayama;'that the personal property had been appraised by experts, with the formalities prescribed by law, at $245, and the realty at $1,700; that December 25, 1901, was set for the public sale of the furniture, and January 21, 1902, for that of the real property; that at the auction of the furniture no bid was made, and at the request of Attorney Diaz Navarro it was, by order of January 10, 1902, awarded to him in partial payment of his claim, for two-thirds its appraised value, or $173.32; that on the day set for the public sale of the real property, no bidder having come forward, Francisco Bruno appeared, as attorney in fact for Diaz Navarro, and offered for the house and all the appurtenances thereof, on behalf of his principal, two-thirds of their valuation, or $1,133.33, for which sum, no higher bid having been made, nor a protest entered, said realty was awarded to Diaz Navarro, on account of his claim and costs, pursuant to an order of January 22, 1902; tbat at the request of Diaz Navarro, Carolina Luzunaris was ordered to execute a deed in favor of the former, which, being duly authorized therefor by the District Court of Ilumacao, she did so on January 23, 1902, before the notary of Guayama, José Mariano Capó, said deed being recorded in the Registry of Property, at folio 138, volume 18, of Guayama, property No. 950; that when said deed had been executed and already recorded in the Registry of Property, pursuant to an order issued by the District Court of Humacao, on the occasion of the complaint in intervention now answered by him, Francisco Bruno, as attorney in fact for Diaz Navarro, was on the 24th of January, 1902, summoned to pay the price of the house sold at auction, the latter (Bruno) replying that at the time of the public sale he had, by virtue of the right granted by article 1440 of the Law of Civil Procedure, requested that the property be awarded to said Diaz Navarro on account of the principal for which he sued, and costs, as provided by article 1502 of aforesaid law, for which reason he could not make over the price of the award.
    “On motion of the parties, the taking of evidence was proceeded with, the plaintiff waiving the interrogatories he had formulated, and the defendant filing with the record the following documents: Certified copy of the record of the canonical marriage, solemnized on November 7, 1898, between Ramón Pastor Díaz Molinari and Carolina Luzunaris Dominguez; a copy of the petition filed on November 17, 1901, by Attorney Herminio Diaz Navarro in the action for divorce instituted on behalf of Carolina Luzunaris against her husband Ramón Pastor Diaz, praying the court to issue an order summoning Carolina Luzunaris to pay him, within the term of three days, the sum of two thousand dollars, in settlement of his fees as counsel in aforesaid action, under pain of compulsory proceedings, and that the municipal judge of Guayama be commissioned to execute said order by compulsory proceedings, with power to attach property, issue the proper orders to the registrar of property for entry of the cautionary notice of attachment, if levied on real estate, and to have the attached property appraised and sold at auction, approve said sale, make the award, and observe suck other formalities as might be necessary until payment was made to the attachment creditor of the amount sued for; copy of the order issued by the District Court of Iiumaeao, on November 23, 1901, granting the req-quisition for payment issued against Carolina Luzunaris Dominguez, and other prayers made by aforesaid Attorney Diaz Navarro in his petition dated on the 17th of the same month and year, and commissioning the municipal judge of Guayama to serve the same upoa, and to institute compulsory proceedings against, Carolina Luzunaris; copy of the requisition for payment served upon aforesaid Carolina Luzunaris, November 25, 1901, returned with the latter’s answer acknowledging the debt claimed by her counsel, Diaz Navarro, and stating that she ~was unablet to pay owing to the lack of money; copy of the papers connected -with the attachment proceedings had on the 29th of aforesaid November, showing that some furniture and a zinc-roofed, one-story house,' situated in Calle Nueva in Guayama, belonging to her, bounded by Calle de San Femando, in entering on the right, on the left by a vacant lot belonging to the estate of Rodríguez Lafuente, and in the rear by the house of Juan Ignacio Capó, had been attached; copy of the appraisement of the property levied upon, from which it appears that the furniture is valued at two hundred and forty-five dollars, and the realty at seventeen hundred dollars; copy of the papers connected with public sale of the personal property, had November 21, 1901, at which no bid was made; copy of the order issued by the municipal judge of Guayama, January 10, 1902, awarding to Attorney Diaz Navarro, at his request, the personal property of Carolina Luzunaris that had been attached, for two-thirds of the appraised value thereof, in part payment of his claim; copy of the papers connected with the public sale had January 21, 1902, of the house belonging to Carolina Luzuna-ris, that had been attached, when, said sale having elicited no bid, Francisco Bruno, as attorney in fact for said Diaz Navarro, had requested that the property be awarded to his principal for two-thirds of its appraised value, or $1,133.33; copy of an order issued on the 22d of aforesaid January, by the municipal judge of Guayama, Guillermo Alvarez, countersigned by his clerk, Benigno Capó, whereby the house levied upon was awarded to Attorney Diaz Navarro'on account of his claim and costs, for two-thirds of its appraised value; copy of the writing filed with the District Court of Humacao by Attorney Diaz Navarro in the action for divorce instituted by him on behalf of Carolina Lnzunaris against her husband, announcing an appeal in cassation for error of law from the judgment of said court on the incidental issue of nullity of proceedings, raised by counsel for Ramón Pastor Diaz; copy of the writing of Attorney Díaz Navarro perfecting before the Supreme Court the notice of appeal from the judgment, with reference only to the imposition of all the costs against the party represented by him; certificate to the effect that in the aforesaid suit of divorce no statement of fees had been presented by Attorney Juan Hernández López and Attorney Rafael López Lan-drón; that in said proceedings there had been no taxation of costs; that it did not appear that any appeal had been taken from the decision on the writing demanding payment of fees, nor that any complaint in intervention, based upon a preferred right, had been filed by counsel for Pastor Díaz; and, lastly, a certificate stating that the appeal in cassation for error of law, in due time and form taken by counsel for Carolina Luzunaris, had been allowed on May 17, 1902.
    “May 16, 1902, at 3 p. m., having been set for the oral hearing of aforesaid suit, Attorney Manuel León presented the same day, on behalf of Pastor Diaz, by request of his colleague Juan Hernández Ló-pez, a petition praying that the hearing be suspended, by reason of the latter’s illness, as shown from the certificate issued the day before, at San Juan, Porto Rico, by Dr. E. Saldaña, stating that Attorney Hernández López was suffering from an acute inflamation of the colon, which illness precluded his undertaking a journey outside the capital; and another petition was filed by Attorney Diaz Navarro, praying that the suspension asked for be denied, as the petition therefor had not been filed in time.
    “The suspension requested by Pastor Diaz’s attorney having been considered out of time, inasmuch as the illness was not alleged within the period prescribed under paragraph 6, article 322, of the Law of Civil Procedure, the hearing of the ease was proceeded with, Attorney Diaz Navarro alone appearing, who in his argument asked that the complaint be dismissed, with costs against the plaintiff in intervention.
    
      . “In tbe conduct of this case tbe legal provisions bave been complied witb.
    “Judge José Ramón Aponte, acting in substitution of Judge Juan N. Kearney, prepared tbe 'opinion of tbe court.
    “Notwithstanding tbe fact tbat tbe .costs were imposed upon Carolina Luzunaris in tbe incidental issue of nullity raised in the action for divorce instituted by her against her husband, Ramón Pastor Diaz, an appeal in cassation was taken from said resolution to tbe Supreme Court, where it is now pending, and until said appeal is dismissed, and tbe other formalities prescribed by title 2, book 1, of the Law of Civil Procedure are complied witb, and aforesaid Pastor Díaz shows tbat be has paid the costs of his attorney, Hernández. López, be has no action against tbe defendant for any claim whatever, and therefore cannot allege any preference as to a credit which is absolutely void.
    “For -the reasons above set forth, no evidence having been brought forward by plaintiff, who, besides, has failed to appear at the trial, and the exceptions of the defendants having been sustained, the complaint should be dismissed and costs imposed upon plaintiff for his manifest obstinacy in prosecuting his case.
    “In view of the articles of the Civil Code and of the Law of Civil Prpeedure applicable to the case, we adjudge that the complaint in intervention. brought by Ramón Pastor Díaz be, and is hereby, dismissed, the defendants Diaz Navarro and Carolina Luzunaris being absolved therefrom, with costs against complainant. Salvador Fulla-dosa, Ulpiano Valdés, José A. Aponte.”
    From the foregoing decision counsel for Ramón Pastor Diaz took an appeal in cassation for error of procedure and error of law, which appeal was allowed, and the record having been forwarded to this Supreme Court, after citing the parties to appear, it was conducted in conformity with the procedure prescribed by the act of March 12, 1903, establishing the Supreme Court of Porto Rico as a court of appeals. After an examination of the papers by the parties, a day was set for the bearing, at which counsel for appellant appeared.
    
      Mr. Alvares Nava, for appellant.
    
      Mr. Guzmán Benitez {Juan), for respondent.
   Mr. Justice HebNÁNdez,

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

The findings of fact contained in the judgment appealed from are accepted.

Ramón Pastor Diaz duly offered to submit documentary evidence for the taking of which proper letters requisitorial were issued to this Supreme Court, and these do not appear to have been returned duly executed to the Humacao court. Moreover, he requested that the defendants, Carolina Luzu-naris and Herminio Díaz Navarro, be summoned to appear at the oral trial to testify or answer under indecisive oath such questions as would in due time be propounded to them, which request was granted by an order of May 6, 1902, the 16th of said month being fixed therein for the hearing and the proper writs issued for said summons, which writs do not appear on the record to have been executed and returned.

By an order made in furtherance of justice this court called for a copy of the final decision or decisions rendered on the appeal in cassation for error of law from the judgment rendered by the Humacao court, November 13, 1901, in the incidental issue for annulment of proceedings had at the trial of the divorce suit instituted by Carolina Luzunaris against Ramón Pastor Díaz, and from the certificate it appears that the judgment rendered by the court of Plumacao, November 13, 1901, was vacated as to the costs, by a decision rendered May 22, 1902, ordering said costs to be understood as without special imposition.

Notwithstanding the fact that Carolina Lnznnaris was adjudged to pay the costs in the judgment rendered by the District Court of Humacao, November 13, 1901, which declared that the incidental issue for annulment of proceedings, raised by Ramón Pastor Diaz at the trial of the divorce suit brought by the former against the latter, was properly raised, said judgment was reversed by this Supreme Court, as to the portion thereof referring to the costs, which was ordered to be given in the usual manner, that is to say, without special imposition; and, therefore, the judgment in question had no executory force as to this matter. Hence, Pastor Díaz can show no claim against Carolina Luzunaris, by reason of said judgment, which may serve as a basis for a contention as to whether or not he is entitled to recover such a debt out of the proceeds of the property of Carolina Luzunaris, in preference to the fees due Attorney Diaz Navarro, as attorney for the latter.

Although paragraph 6 of article 323 of the( Law of Civil Procedure was not applicable in connection with the denial by the Humacao court of the postponement of the trial applied for by counsel for Ramón Pastor Diaz, since the period for taking evidence and, that for the hearing of the arguments of both parties are different things, the refusal of such postponement in the case at bar, without the presence of counsel for plaintiff, did not produce the effect of leaving the latter without defense, inasmuch as all the proofs of the defendants had been taken, for which he was duly cited, and although it is true that Pastor Diaz had offered to submit documentary evidence, as also that of confession in court, the former was not taken through Ms own fault; he having failed to return the letters requisitorial addressed to this Supreme Court for that purpose; and as regards the interrogatories that were to be answered by defendants, as these were not prepared in writing, it is impossible to say whether they were pertinent or not, and whether or not. the omission of such evidence could have prevented the presentation of any defense; aside from the fact that whatever might have been the result thereof, it could never have destroyed the documentary evidence on file with the record, which shows the plaintiff has no title that could serve as a ground for an action in intervention based upon a preferred right.

Under rule 63, of General Order No. 118, series of 1899, costs shall always he paid by the litigant who loses his case on all points. We a judge that we should affirm and do affirm the judgment appealed from, as delivered by the District Court of Humacao, May 26, 1902, whereby Herminio Díaz Navarro and Carolina Luzunarias y Domínguez are released from the complaint, with costs against the plaintiff, whom we likewise adjudge to pay the costs of this appeal. 'The record is ordered to he returned to said court with the proper certificate.

Chief Justice Quiñones and Justices Pigueras, Sulzbacher and MacLeary concurred.  