
    Emilio Remy-Liger, Plaintiff and Appellee, v. Luis Muñoz-Morales and Rafael Álvarez-Torre, Defendants and Appellants.
    No. 3689.
    Decided July 22, 1925.
    1. Appeal — Diligence—Excusable Mistake. — Notwithstanding the expiration of time within which to file the statement of the case, an appeal will not he dismissed when the appellant shows that his apparent lack of diligence was due to an excusable mistake in computing the expiration of a previous extension of time.
    2. Id. — Frivolous Appeal — Reconsideration.—An allegation that the ax>peal is frivolous made, in a motion for reconsideration will not be considered when it was not set up in the original motion for dismissal and the motion for reconsideration does not bring up the record of the case so that it may be considered on its merits.
    MotioN for RECONSIDERATION of an order of -July 6, 1925.
    
      Overruled.
    
    
      Leopoldo Feliú for the appellants. Alberto Marin for the appellee.
   Mr. Justice Franco Soto

delivered the opinion of the court.

In his motion for reconsideration the appellee insists that we should set aside our order of July 6, 1925, and dismiss the appeal.

The appellee cites the cases of Cruz v. Luiña et al., 33 P.R.R. 967, contending that the facts in that case were the same as those in this and that there is no reason to distinguish it. However, in the case cited no affidavit of merits was filed and it was not attempted to show that the lack of diligence of the appellant was excusable in computing the expiration of a certain extension of time in order to keep the term alive and move for new extensions.

In this case the appellants exhibited with their written objections an affidavit of merits signed by their attorney showing that they made a mistake of one day in their computation of the expiration of the penultimate extension allowed, and it appeared clearly that the mistaken computation was excusable, for which reason this court, in the exercise of its inherent discretional power, decided to grant the appellants fifteen days within which to file the statement of the case.

The other ground on which the appeal is alleged to be frivolous can not be considered, because not only was it not set up in the original motion for dismissal, but we have not before us with this rqotion the whole record of the case in order to be able to consider its merits.

For the foregoing reasons the motion for reconsideration is overruled.  