
    Flora Rodríguez, etc., Plaintiff and Appellee, v. The American Railroad Company of Puerto Rico, Defendant and Appellant.
    No. 5213.
    Argued February 10, 1930.
    Decided July 29, 1930.
    
      Mariano Acosta Velarde for appellant. Pascasio Fajardo for ap-pellee.
   Mr. Justice Wolf

delivered the opinion of the Court.

The appellee moves to dismiss this appeal on the ground that the appellant had failed to push the approval of the -stenographic notes pending before the District Court of Ma-yagiiez, or at least had not done so within the 90 days called for by our rules. The appellant contended before this court in its opposition to the motion, that the district court was in vacation and that there was pending for approval a report on the view {inspección ocular) taken by the court of the scene •of the accident. The appellee maintains that nevertheless the court met for the purpose of motions once or twice a week -and that the appellant could have pushed its case. A short while thereafter the appellant certified up to this court the transcript of the evidence with the report of the view made by the court and has also completed the record and filed its brief. The order of the court adding the report to the record ■contained the statement that the parties opportunely presented to the court their suggestions for the said report. This "was on the 3rd of February, 1929, and on the 5th thereof the court approved the transcript. Under the recited circumstances we think the appellant has shown sufficient diligence- and the motion to dismiss on this ground should be overruled..

The appellee, however, presented a motion to dismiss the-appeal on the ground of its being frivolous. Counsel for the-appellee brought up a copy of the stenographer’s notes certified by the latter, but not by the court below, to aid an attempt to prove that the appeal was frivolous. The appellant insisted that the appeal was a meritorious one, but did not attempt to answer in detail the arguments of the appellee to the effect that the appeal was frivolous. We have some sympathy with the motion of the appellee which a superficial examination of the appellant’s brief has not so far dissipated. Nevertheless, at the time that the motion was presented we did not have before us the certificate of the stenographic notes, duly approved by the district judge. They have now been certified up to us, but at the time of the motion, technically at least, the appellee, and perhaps the appellant, had no right to rely on the uncertified stenographic notes. At the time of the submission of the motion to dismiss, therefore, this court Avas not in a position to enter into a consideration of the stenographic notes. To consider them now would be to pass upon something that the appellant did not have -a benefit of at the time the motion was made, namely, a complete certificate approved by the trial judge along with his report of the condition of the railroad station at the time of the accident. We feel compelled to decide that the motion to dismiss as frivolous, in so far as it depended on the examination of the facts, was premature. It Avill therefore be overruled without prejudice to its renewal.

Mr. Justice Hutchison concurs in the judgment.

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