
    Molinari v. Aponte, District Judge.
    Application for Writ of Certiorari.
    
    No. 45.
    Decided June 9, 1908.
    Unlawful Detainee — Bond on Appeal — Requirements for Principals— Affidavit. — In bonds furnished in accordance with the provisions of section 12 of the Law of Unlawful Detainer, approved March 9, 1905, the sureties only are required to make the affidavit prescribed by section 355 of the Code of Civil Procedure ,amended March 12, 1908, it being sufficient for the debtor merely to sign the bond.
    The facts are stated in the opinion.
    
      Mr. Franco Soto for appellant.
   Mr. Justice MacLeary

delivered the opinion of the court.

Application was filed in this court for a certiorari on the 22d of May last, alleging that on a trial in a case of unlawful detainer, brought by Doña Felicita Echavarria against the petitioner, Adolfo Molinari, in the District Court of Agua-dilla, judgment had been rendéred against the petitioner ejecting him from the property, and that from this judgment the petitioner took an appeal in due course, and moved the court to fix the amount of the ]iond which he should give in order to perfect the same in accordance with section 12 of an act establishing unlawful detainer proceedings, and fixing the rules for taking appeals in this class of actions, approved on the 9th of March, 1905. (See Sess. Acts 1905, p. 185.)

On this motion the Judge of the District Court of Agua-dilla made the following order:

“Let the defendant, Adolfo Molinari, furnish a joint bond for the amount of $250, United States currency, in favor of Mrs. Felicita Echavarria, with two more sureties who shall jointly, severally and individually bind themselves under oath to be responsible for the said amount in case that the payment of losses and damages, which may be occasioned to the defendant, should be ordered, and also for the costs of the appeal, all of which shall be made to appear in a sworn and written statement by the said sureties, and stating also that each of them is a resident, head of a family or proprietor in the Island, and that each of said sureties has property to the amount of $250 after fully covering all his debts and liabilities to the exclusion of all property which is exempt from execution, and that the bond thus furnished by the debtor and the sureties shall be held to be a joint obligation.”

The applicant alleges that this order imposes upon him a more onerous duty than the law requires; in fact, requiring him to become surety on liis own bond and to qualify as such under section 355 of the Code of Civil Procedure.

It was never intended that defendants taking appeals should be required to qualify in the same manner as the sureties on their bonds are required to do, because in that case a poor person, who could not come within the description given in section 355 of the Code of Civil Procedure, could never take an appeal and would be cut off from all the benefit of the appellate court.

It is a proper practice that defendants should join in the bond, signing the same as principals along with their sureties; hut the sureties only are required to make the affidavit stated in section 355 as to their solvency and liability to respond in damages for the breach of the bond.

According to section 12 of the act providing for unlawful detainer hereinbefore cited, the defendant, when taking an appeal in a case which is founded upon the nonpayment of rents or amount agreed upon, can only exercise such right by depositing in the office of the secretary of the court the amount due up to the date of the judgment, and in all other cases of unlawful detainer the appellant is required, as an indispensable requisite to his right of appeal, to furnish an undertaking to the satisfaction of the court, binding himself to pay all damages which may be occasioned to the plaintiff, and also the costs of the appeal.

It is further provided that both the deposit and the undertaking referred to in section 12 of the law shall be made or filed within the time granted for taking the appeal. Construing this section with section 355 of the Code of Civil Procedure, it would be sufficient that the sureties should sign the undertaking along with the principal, who is the defendant in this case, and that they should qualify by making affidavits that they are each residents and householders or freeholders within the Island of Porto Rico; and that they are each worth the sum specified in the undertaking, over and above all their just debts and liabilities, exclusive of the property exempt from execution.

The amendment to this section of the Code of Civil Procedure, passed on the 12th of March last, does not affect, this provision, but only authorizes certain surety companies to become sureties on such bonds. However, the act was not passed until the next day after the order was made, and for that'reason also it would apply to this case.

The order entered by the District Court of Aguadilla, as will be seen, may possibly be construed to be more onerous than the law authorizes, and for that reason should be modified in accordance with the views expressed. It will, there-before, be annulled and the District Court of Aguadilla directed to make an order allowing the appeal in accordance with the views herein expressed. The district court will also at the same time concede to the applicant a reasonable time within which to prepare a statement of the case on which to base his appeal. Judgment should be entered in accordance with this opinion.

Application granted.

Chief Justice Quiñones and Justices Hernandez, Figueras and Wolf concurred..  