
    Verges Et Al. v. Succession of Pietri.
    Appeal in cassation from a j udgment rendered by the former “Audiencia Territorial”.
    No. 5.
    Decided October 25, 1902.
    Appeal in Cassation. — An appeal in cassation for error of procedure lies, for failure to admit evidence in any instance.
    Evidence in the Second Instance. — The introduction of evidence in the second instance cannot be allowed in cases where the evidence proposed has not been introduced in the first instance by reason of negligence or failure imputable to the party proposing the same.
    STATEMENT OE THE CASE.
    The solicitor, Don Tomás Agrait y Font, attorney in fact ■ of Doña María Verges Remond and of Doña Francisca Evalina Remond y Vasalle in her own right and as ab intestate heir of her deceased son, Don Juan Arturo Verges Remond, making use of the right appurtaining to his principals, filed suit in the former Court of First Instance of San German for the recovery of real estate and to obtain the annulment of conveyances made thereof and of the subsequent inscription of the deeds in the Registry of Property.
    The case having been admitted for the introduction of evidence within the two ordinary periods, of which the thirty day period commenced to run on the 11th of August, 1894, and ended on the 18th of September of the same year, the plaintiffs'proposed such evidence as they deemed proper; and they offered as a part of such evidence, testimony of expert witnesses, each party designating one expert and the Court designating a third, and on the return of service upon the experts for their acceptance of the appointments,. and after the appointment of another expert on account of the refusal of one who resided in the City of Ponce to accept, and on the return of service and the acceptance of the substitute, on the 11th of September, 1894, the-15th day of the same month was fixed for the experts to' begin the work with which they were charged, and they were ordered to appear on the 18th of the month and year aforesaid to testify as to the result of their labors, and it was ordered that the parties be summoned for a hearing of that portion of the evidence.
    On the day set, that is to say, on the 18th of September, the experts appeared and testified only as to a part of their labors, adding that as they had not had sufficient time, they had decided to discontinue the work, it not being possible for them to give an opinion in regard to any of the points to be submitted in evidence, but only giving it as their opinion that the lands of. the Pinotel concession must be included within a rectangle starting twenty cuerdas to the east, beginning at the mouth of the Almendrones Brook where it runs into the Bio Chiquito; from this point forty cuerdas to the south; from there twenty-nine cuerdas to the west; and from this point forty cuerdas towards the north, back to the starting point, thus closing the rectangle.
    On the termination of the proceedings in the Court of First Instance, judgment was rendered on the 11th of December, 1895, dismissing the complaint, and taxing the costs against the plaintiff; also dismissing the counter claim filed by Domingo Pietri.
    The record having been sent up to the “Audiencia Territorial” on appeal taken by the plaintiff, the statement of the case having been prepared and forwarded to the appellant, by an additional paragraph to the same writing, appellant asked that evidence be taken in the case, mentioning the proposed expert testimony before the lower court, and adding that if the said expert testimony was not taken in the manner requested and declared pertinent, it was not through any cause imputable to plaintiff, and invoked Article 861 of the Law of Civil Procedure in support of his contention.
    
      The introduction of evidence being opposed by the defendants and respondents, the Court entered an order in the month of August, 1896, refusing to allow such introduction of evidence, holding that the fact that said evidence was not introduced as proposed, was due to the negligence of appellant, since all of the orders made with that end in view were consented to, and the time was lost by appellant himself, and especially in the delivery in Ponce of one of the requisitory letters for compliance therewith; appellant made a motion for a reconsideration of the aforesaid order, and the Court overruled said motion on the 16th of November, 1896.
    A day having been set for the hearing, the same took place on the 27th, 29th and 30th of November and the 1st, 2nd, 3rd, 4th, 6th and 7th of December 1897. The counsel and solicitors representing the parties being present at the hearing a judgment was rendered affirming the decision of the court below, with costs.
    Doña Francisca Evalina Remond and Doña María Verges took an appeal in cassation for error of procedure, and announced their intention to take an appeal for error of law, basing the said appeal on paragraph 3 of Article 1691 of the Law of Civil Procedure for failure to admit the record in evidence in the second instance'.
    . Mr. Ckoevillas Hernández, for appellant.
    
      Mr. Manuel F. Rossy, for respondent.
   Mk. Justice Figueras

delivered the opinion of the Court: Paragraph 3 of Article 1691 of the Law of Civil Procedure provides that for failure to take evidence in any instance when it should be taken according to law, an appeal in cassation for error of procedure will lie.

According to the provisions of Paragraph 2 of Article 861 the introduction of expert testimony in the second instance as requested, could not be allowed inasmuch as said evidence having been offered and admitted in the first instance, the time was lost by appellant without exercising the diligence which should have been exercised in a matter of so much importance, as it appears on the reverse of page 985 of the 5th section of the record that the requisitory letter -for the acceptance of the expert Vails residing in Ponce, was delivered to the solicitor for appellant, Don To-más Agrait y Font, on the 18th of August, 1894, and it appears to have been received in the Ponce Court, on the 3rd of September of the same year, reverse of page 1931 of the sixth section, from which it is seen that, the said solicitor lost sixteen days before he forwarded said requisitory letter; because there appears to be no doubt that it was delivered to him, and this time was afterwards necessary for the introduction of appellant’s own evidence ; for which reason the failure complained of by appellant is the result of his own negligence.

We adjudge that we should declare, and do declare, that the appeal in cassation for error of procedure, taken by the estate of Verges, does not lie and tax the appellant with the costs. This judgment will be communicated to the Court below in due time, and the appeal for error of law will be proceeded with.

Associate Justices Hernández, Sulzbacher and MacLeary concurring.  