
    Vega et al., Plaintiffs and Appellants, v. Rodríguez et al., Defendants and Respondents.
    Appeal from the District Court of Arecibo.
    Motion to Dismiss Appeal.
    No. -. —
    Decided October 10, 1913.
    Appeal — Dismissal op Appeal — Grounds eor Dismissal Under Eule 59. — The mere failure to present the transcript of the record in.this court within 90 days after the filing of the notice of appeal is not sufficient to warrant the dismissal of the appeal by this court under rule 59. It must be shown besides that the appeal has not been prosecuted with due diligence or in good faith, or that it is frivolous.
    Id. — Diligence op ■ Appellant — Amendments to Statement oe the Case.— ' When, as in the present case, the lower court orders that certain amendments be made to the statement of the case without specifying a fixed time for the filing of the amended statement, the fact that the appellant has allowed a long time to elapse. without making the amendments ordered is not sufficient pf itself to warrant a dismissal of an appeal for lack of diligence on the part of the appellant.
    Tbe facts are stated in tbe opinion.
    
      Mr. Juan de Guzmán Benitez for appellants.
    
      Mr. José Martínez Bávila for respondents.
   Mr. Justioe Aldrey

delivered tbe opinion of tbe court.

Tbé respondents in this case move for a dismissal of tbe present appeal in accordance with rule 59 of this court, which provides that notwithstanding tbe extensions of time allowed by the court a quo, it is within the discretion of this court to dismiss an appeal when more than 90 days have elapsed since the filing of the notice of appeal and the record of the case has not been filed in the office of the secretary of this court, upon the presentation of proper proof that the appeal has not been prosecuted with due diligence and in good faith, or that the appeal is frivolous. Thu mere lapse of the 90 days is not sufficient to warrant our dismissing the appeal under this rule, but it must be shown besides that some of the other circumstances specified in said rule exist. Therefore, as no evidence to this effect has been submitted in the present case, the motion for dismissal cannot be sustained.

It is true that the respondents attempt to deduce a lack of diligence on the part of the appellants from the fact that although the lower court ordered them to amend the statement of the case presented for its approval to be used in the appeal, said appellants allowed a long time to pass-without making the amendments ordered; but as the order of the court stated no fixed time for the presentation of the amended statement, we cannot hold that in such circumstances the appellants have been negligent, and if the failure to specify a fixed time delayed the preparation of the appeal, the respondents should have moved said court to limit the appellants to a certain .fixed period. Before we exercise our discretional power to dismiss an appeal under this rule we must be satisfied of the lack of diligence on‘the part of the appellants, and in this case we are not. The motion must be overruled.

Motion overruled.

Chief Justice Hernández and Justices "Wolf and del Toro concurred.

Mr. Justice MacLeary did not take part in the decision of this motion.  