
    Pescay et al., Petitioners, v. Texidor, District Judge, et al., Respondents.
    Petition for a Writ of Certiorari to the District Court of San Juan, Section 1, in an Action to Rescind a Contract, and for Damages.
    No. 217.
    Decided February 26, 1918.
    Certiorari — Appeal — Order Setting Aside Judgment — Judgment — Attachment Without Security. — In accordance with section 297 of the Code of Civil Procedure, an appeal from an order setting aside a judgment leaves the same in force pending the decision on appeal; therefore it cannot be held that there is no basis for the attachment which was ordered without security as a result of the judgment, in accordance with Act No. 27 of 1916.
    The facts are stated in the opinion.
    
      Messrs. Guerra & Guerra for the petitioners.
    
      Mr. Enrique Rincón Plumey for the respondents.
   Mr. Justice Audrey

delivered the opinion of the court.

The District Court of San Juan, Section 1, rendered a default judgment against the petitioners in this certiorari proceeding for the rescission of a certain contract and the payment of the sum of three thousand five hundred dollars as damages. After judgment the plaintiff moved for an attachment, without security, of property of the defendants to secure payment of the said sum and the court sustained the motion.

After the attachment was, levied the defendants moved the court to open the default and set aside the judgment rendered against them without hearing them. The trial court sustained the motion and the plaintiff appealed from that ruling. At this stage of the case the defendants-moved that the attachment be dissolved on the ground that the judgment on which the order of attachment without security was based had been set aside, and although the court sustained that motion, it reconsidered its ruling forthwith and ordered that the attachment should remain in force. This is the ruling complained of by the petitioners in this proceeding.

We are of the opinion that by so ruling the trial court did not violate the law of procedure referring to attachments.

Section 3 of that law, as amended by Act No. 27 of April 13, 1916, empowers the courts to grant writs of attachment without security when moved for after judgment is rendered. In this case judgment had been rendered when the attachment was granted without security, and while it is true that later the said judgment was set aside for the purpose of giving the defendants their day in court and the default made by them was opened, as the order to this effect was appealed from by the plaintiffs its operation was stayed by virtue of section 297 of the Code of Civil Procedure, which provides that whenever an appeal is perfected it stays all further proceedings upon the judgment or order appealed from; therefore we cannot sustain the contention of the petitioners that the order entered setting aside the judgment and opening their default immediatey subs!itutod the former judgment, and that consequently there is now no judgment against them to support an attachment without security.

The writ should he discharged.

Writ discharged.

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