
    Delgado et al., Plaintiffs and Appellees, v. Delgado et al., Defendants (Lecaróz et al., Appelants).
    Appeal from the District Court of Ponce in an Action to Annul a Partition. Change of Yenue.
    No. 2150.
    Decided May 24, 1920.
    Change oe Venue — Wakkanty—Jurisdiction.—If the defendants in warranty duly assert their right to a change of venue to the court of 'the district in which they and all the defendants reside, the change of venue can not be opposed on the ground that the court had acquired jurisdiction because one of the original defendants had appeared to move for the summons in warranty, The submission of one defendant does not affeet the others when all reside in another district and the change is duly ashed for.
    Tbe facts are stated in the opinion.
    
      Messrs. 3. and M. Tons Soto for the plaintiff-appellees.
    
      Mr. J. D. Rodrigues for the defendant-appellees.
    
      Messrs. Large & Zeno for the appellants.
   Mr. Justice Wolf

delivered the opinion of the court.

This was a suit to annul a partition of hereditary property. There were two original defendants. One of them, Luis Vivó, acquired some of the property of the estate by successive transfers or adjudications made during or after the partition. On being sued, the other defendant, one of the heirs, apparently defaulted, but defendant Luis Vivó, on being so sued, cited appellants Lecaróz el al., grantors to Vivó, to appear and defend in eviction and warranty. The appellants, on being so cited, presented a demurrer to the District Court of Ponce and asked that the case be transferred to the District Court of Aguadilla, where they reside. The motion was duly accompanied by an affidavit of merits.

It appears that not only the appellants but also the original defendants all reside in Aguadilla, but the appellees maintain that as defendant Vivó came into the District Court of Ponce to raise the question of eviction and warranty, such a coming into court was an appearance and submission tq .said .district court. Sections 77, 81, 82 and 83 of the Code of Civil Procedure.

Now, while it may be questioned whether the appearance of Luis Vivó merely to cite his grantors was the appearance of which section 77 of the Code of Civil Procedure speaks, yet the fact remains that two of the defendants, when they appeared, duly asked for a transfer. The case of the Royal Bank of Canada v. A. McCormick & Co., 25 P. R. R. 112, is decisive of this question. There we held that where all of the defendants reside out of the jurisdiction of the court in which the suit is brought it cannot acquire jurisdiction by the submission of some of the defendants if the others ask for a transfer.

The order appealed from must be reversed and the transfer made.

Reversed.

Chief Justice Hernández, and Justices del Toro, Aldrev and Hutchison concurred.  