
    Rivera v. Borrero.
    Appeal in cassation from the District Court of Mayagtiez.
    No. 42.
    Decided March 7, 1903.
    Illegitimate Children. — Recognition oe. — The recognition of illegitimate children horn before the publication of the. Civil Code must be governed by the previous legislation and not by article 131 of the Civil Code.
    Appeals. — Evidence.—The consideration of evidence will not be reviewed on an appeal in cassation when the appeal is not based upon article 1690 of the Law of Civil Procedure.
    
      Id. — Errors of Law. — An appeal in cassation for error of law lies only in sueli cases as are specifically mentioned in article 1690 of the Law of Civil Procedure.
    Id. — Errors of law will not be considered on appeal unless presented in the manner prescribed in article 1718 of the Code of Civil Procedure. v
    STATEMENT OP THE CASE.
    On November 5, 1900, La 0. Rivera, on behalf of his wife Candelaria Velez, brought suit in the District Court of Maya-giiez against Josefa, Claudio, Cándida and Angela Borrero, brother and sisters of Santos Borrero, deceased, demanding that the infants Ana María and Florencio, procreated by him with the plaintiff, be declared natural children of said Santos Borrero, for which purpose plaintiff set up that before her present marriage she lived with the aforesaid Borrero as his concubine, and had three children by him named Ana María, Florencio and Mariano, of whom the two first mentioned are living. Said children had not been formally and publicly acknowledged by Borrero, although it had been his intention to do so, but there existed unassailable proofs of said filiation. She invoked as legal authorities article 137 of the Civil Code and the judgment of the Supreme Court of Spain, of November 10, 1886.
    In answering the complaint, Josefa, Claudio, Cándida and Angela Borrero alleged the exception of want of capacity to sue on the part of Candelaria Velez, inasmuch as, by her marriage to La O. Rivera, she had forfeited her authority over, and representation of, her natural children, an exception which they would plead at the oral hearing, as prescribed by General Order No. 118. As facts, they alleged that Santos Borrero had married in Mexico Asunción Re-villo, and that shortly before he died, he had been informed of the demise of his wife, without leaving any children nor had he ever had' any offspring with other women, although he had lived in concubinage with several, he being in the habit of boasting that he was a happy man because he had no children. Candelaria Velez had never been his mistress, but she was his servant on a salary, and when he took the names of her children to be entered at the Civil Registry he did not acknowledge them, as he would have done, had they been his own. For this reason defendants had been -adjudged heirs of Borrero, whose small property was sold to satisfy debts contracted by him amounting to over five hundred pesos. They cited as legal authority, articles 129, 130, 131, 134, 135, 137, 140 and 141 of the Civil Code, and prayed that the exception of want of capacity on the part of plaintiff be noted, and that the case be dismissed with costs.
    Plaintiff offered as evidence the certificate of baptism of Ana María, a natural child of Candelaria Velez, which according to said document was born on the 25th of August, 1883, a certificate of the death of Santos Borrero, unmarried, which occurred on the 20th of April 1897, and a deed of sale of lands, executed by Borrero, as an unmarried person, under date of January 29, 1896, all of which documents were compared with their originals. Plaintiff also introduced the testimony of witnesses to establish the natural filiation of the infants Ana María and Florencio, with respect to Santos Borrero. Said evidence having been taken at the hearing, at which counsel for defendants failed to appear to sustain the exception' of want of capacity to sue, the same was overruled by the court.
    Defendants also offered the testimony of witnesses, among whom were Miguel Trujillo, residing in Mexico and Damian Ramirez y Baez, an employee at Azú, Santo Domingo, and documentary evidence consisting of the certificate of the marriage of Santos Borrero to Asunción Revillo y Molara, which took place in Mexico about the years 1875 or 1876, and the certificate of death of the latter, occurring in said city, between 1896 and 1897, for which purpose they prayed that the extraordinary period for the introduction of evidence be opened, and that letters rogatory be issued to that effect, through diplomatic channels, which evidence was refused by the Mayagfiez Court, in a ruling of March 8th of last year, because it had not been proposed as prescribed for such cases by the Law of Civil Procedure.
    On April 15, 1902, the Court of Mayagüez rendered judgment sustaining the complaint in so far as Ana Maria Velez was concerned, with all the consequences provided for by the Civil Code, and dismissing the same with regard to Flo-rencio Velez, who lacked the qualifications required in order to be considered a natural child, without special imposition of costs.
    From this decision Josefa, 'Claudio, Cándida and Angela Borrero through their counsel took an appeal in cassation for violation of law, authorized by articles 1687 and 1688 of the Law of Civil Procedure, and paragraph 79 of General Order No. 118, and provided for under sub-division 1 of article 1690 of aforesaid law, citing as violated :
    L- — Article 131 of the Civil Code, on account of the non-application thereof inasmuch as according thereto natural children are only such as have been acknowledged in the record of birth, by will or by any other public instrument.
    II. — Article 119 of the same Code, which declares that natural children are only those born of parents who, at the time of the conception of the child, could have married with or without dispensation, as it does not appear from the record as having been proven that Candelaria Velez and Santos Borrero were capable of contracting marriage, when they begot the children whose acknowledgment is requested.
    III. — Paragraph 70 of General Order No. 118, Series of 1899, and article 554 of the Civil Code, (Law of Civil Procedure) by-their non-application, inasmuch as both of these legal provisions authorize the granting of the extraordinary period for the taking of evidence.
    IV.; — Articles 131 and 137 of the Civil Code, because in the judgment the testimony of witnesses is admitted in evidence and considered to prove the paternity without taking into account the-spirit of article 132; the provisions of article 141 of the same code being moreover applicable to the case, for if the admission of testimony of witnesses to prove paternity after the death of the father or mother, were to be laid down as jurisprudence, great confusion would be caused thereby alike to families and to society.
    
      Mr. Alvarez Nava, for appellant.
    
      No appearance for respondent.
   Mb. Justice Hernández,

after making the above statement of facts, delivered the following opinion of the court:

Article 131 of the Civil Code which is alleged to have been violated., under the first and fifth grounds of the appeal, is not applicable to the minor Ana Maria Velez for, having been born before the publication of said code, the right claimed by her should be governed by the laws previously in force, according to rule 1 of the temporary provisions contained at the end of the code now in force, and it has been so held by the trial court in one of the conclusions of law contained in the judgment appealed from.

Nor has there been any violation of article 119 of aforesaid code, -applicable only in so far as it conforms to Law 1J of Toro, namely, 1, Title 5, Book N of the “Novísima Re-copilación” , which is the one that regulates the natural filiation of Ana Maria Velez, for the trial court has deemed it to have been proven that Santos Borrero and Candelaria Velez, both being single, had carried on amorous relations together, and among other children had born to them Ana María; this not having been contested in due form, for which purpose it would have been necessary also to have based the appeal on sub-division 7 of article 1690 of the Law of Civil Procedure.

The violations alleged in the third ground of the appeal, namely, rule 70 of the General Order No. 118, Series of 1899, and article 554 of the Civil Code (it should read Law of Civil Procedure) might furnish occasion, in a proper case, for an appeal in cassation for error of procedure, but not for violation of law, the grounds lor which are specifically mentioned in article 1690 of aforesaid Law of Procedure.

Appellant fails to state in what manner articles 132, 137 and 141 of the Civil Code, cited in the fifth ground of the appeal could have been violated, as he should have done pursuant to the provisions of article 1718 of the Law of Civil Procedure and, therefore, no basis is afforded for the discussion of these supposed violations.

We adjudge that we should declare, and do declare, that the appeal in cassation taken by Josefa, Claudio, Cándida and Angela Borrero, does not lie, and impose upon them the costs. This decision is ordered to he communicated to the District Court of Mayagüez, and the record returned for compliance herewith.

Messrs. Chief Justice Quiñones, and Associate Justices Figueras, Sulzbacher and MacLeary, concurring.  