
    Rivera, Plaintiff and Appellee, v. Rivera et al., Defendants and Appellants.
    Appeal from the District Court of Mayagiiez in an Action for Partition.
    Motion by the Appellee for Dismissal of the Appeal.
    No. 1364.
    Decided November 8, 1915.
    JAppeal — Demurrer—Jurisdiction1.—Even should the district court fail on appeal to rule on the demurrer filed in the municipal court, this is no reason why it may not be considered in the Supreme Court, although such grounds of demurrer as lack of jurisdiction and insufficient facts to constitute a cause of action may not have been pleaded before.
    
      Id. — Transcript of Record — Statement of Case — Bill of Exceptions. — The fact that the transcript of the record for appeal in an action which was decided upon the merits of the evidence does not contain a statement of the case or bill of exceptions does not of itself justify the dismissal of the appeal, because that does not prevent an examination of the pleadings by the court.
    The facts are stated in the opinion.
    
      Mr. Angel A. Vázquez for the appellant.
    
      Mr. Benito Fores for the appellee.
   Mr. Justice Aldrey

delivered the opinion of the court.

The transcript of the record filed in this court contains the complaint which originated the action in the Municipal Court of San Germán, the demurrer thereto by the'defendants and the judgment of that court as well as the judgment rendered by the District Court of Mayagiiez on appeal in this action, which was joined with another, the conclusions on which the said judgment was based and the notice of appeal.

The brief of the appellant having been filed in this court, the appellee presented a certificate of the Secretary of the District Court of Mayagiiez to the effect that the demurrer to the complaint had not been heard and ruled on by the said court, and moved this court to "dismiss the appeal.

The grounds of the motion are clearly erroneous, for even if the district court did not rule on the demurrer of one of the defendants in the municipal court, that is no reason why such grounds of demurrer as the lack of jurisdiction of the court and insufficient facts to constitute, a cause of action, although they had not been pleaded before, may not be considered by this court, as we have held repeatedly.

The other ground that as the case was decided on the merits of the evidence the transcript of the record should necessarily contain a statement of the evidence or a bill of exceptions and that the appeal should be dismissed because .of the absence thereof is equally erroneous, for, as we held in the case of Belaval v. Todd, 22 P. R. R. 120, the omission of a statement of the case does not of itself justify the dismissal of an appeal because that does not prevent an examination of the pleading’s by the court.

The motion should be

Overruled.

Chief Justice Hernández and Justices Wolf and del Toro concurred.

Mr. Justice Hutchison took no part in the decision of this case.'  