
    Banco de Puerto Rico, etc., Plaintiff and Appellee, v. Cristóbal Cruet Carrasquillo et ux., Defendants and Appellants.
    No. 7276.
    Argued June 15, 1937.
    Decided July 31, 1937.
    
      
      M. Guzmcm Texidor for appellants. G. Dominguez Rubio for appellee.
   Mr. Justice Wolf

delivered the opinion of the Court.

In a summary mortgage proceeding the Bank of Puerto Rico, as liquidator of the Commercial Bank of Puerto Rico, obtained a judgment against Cristóbal Cruet Carrasquillo and his wife. Apparently there was some threat on the part of Cruet Carrasquillo to bring a suit to annul the judgment, but in any event the parties got together and agreed that Cristóbal Cruet could continue to occupy the land. He did so and cultivated it for about a year. Then the bank moved the court to issue a writ of possession. This the court did. Subsequently, Cruet moved to set aside the order turning over possession to the bank. The court overruled the motion and Cruet appealed.

The Bank of Puerto Rico has moved to dismiss the appeal on the ground that orders giving possession after a judgment in a summary mortgage proceeding are not appealable. The cases that support this decision are as follows: Roig Commercial Bk. v. Bustelo, 44 P.R.R. 523; Banco de P. R. v. Francisco del Moral, 48 P.R.R. 2.

The constant theory has been that the remedy of the mortgagor with certain exceptions is an ordinary suit and incidental matters, including possession, cannot be raised in the summary mortgage proceeding and hence cannot be reviewed by appeal to this court.

The appellant, however, attempts to distinguish these cases by the reasoning of the case of Gratacós v. District Court, 46 P.R.R. 170.

The Gratacós case was no exception to this rule because there the review was taken by certiorari.

While we had some doubts because of the Gratacós case, supra, we are now convinced that an appeal does not lie in this case.

Appeal should be dismissed.

Mr. Justice Córdova Dávila took no part in the decision of this case.  