
    Perfecto Rodríguez Pérez et al., Plaintiffs and Appellees, v. Central Pasto Viejo, Inc., Defendant and Appellant.
    No. 4771.
    Argued December 3, 1929.
    Decided February 4, 1930.
    
      J. Vendrell, for appellant. Arturo Aponte, for appellees.
   Mr. Justice Wole

delivered the opinion of the court.

This is an appeal by a defendant because the judgment for costs did not exclude attorney’s fees. Perfecto Rodrí-guez and others became the parties to a contract with the Central Pasto Viejo, Inc., and for an alleged breach brought suit to recover $966.17, ■ interests and costs. The defendant demurred. On- the day set for hearing the plaintiffs did not appear. The defendant then withdrew its demurrer and obtained twenty days to answer. Subsequently an answer wa-s filed agreeing to a judgment for the amount claimed with interests, but, setting up facts to justify their position, asked that counsel fees be excluded.. There was a hearing on this issue and the court refused to exclude them.

Tke court-relied-on Hernández v. Heirs of Córdova et al., 31 P.R.R. 604; Betancourt v. Board of Award of Rio Grande, 30 P.R.R. 227; and Zorrilla v. Orestes, 28 P.R.R. 698, and the appellant seeks to distingnisli them.' The coiirt also held that under the facts the defendant ought not to have required the plaintiffs to file a suit and thus to use the services of an attorney.

Under the law, as finally amended by Act No. 38 of 1917, the imposition, of costs is within the discretion of the trial court, unless the defendant fails to mak.e an appearance. In this case the defendant not only appeared but demurred, subsequently indicated its intention to' answer and actually filed an answer attempting to exclude the fees. Under the law it had, so to spehk, a locus posnitentice, but did'not take advantage of it. We do not find it necessary to enter into the excuses that defendant had for not paying the amount claimed.

The brief of appellant, after discussing the excuses concedes that, at some period after suit filed, the defendant was advised to pay the claim. This advice could have been obtained before', if, as was 'quite possible, a different advice was not previously given the defendant. The plaintiff had to consult an attorney. The attorney had to prepare a complaint, and after the defendant indicated its intention to answer further perháps to prepare the case for trial. All these matters and many others may have induced, the court not, to exclude the fees.

To say that the court committed an abuse of discretion the appellant should convince, us that there was a meritorious defense, perhaps that the complaint did not-state- a cause of action. Where such a defense is doubtful,., the court below should have .an ample, discretion with which we are loath to interfere except in a very clear case. ■

The judgment will be affirmed;  