
    Albite v. The District Judge.
    Application for Writ of Certiorari.
    
    No. 55.
    Decided May 28, 1909.
    Certiorari — Appeals prom the Municipal Courts to the District Court— Transmission op Record Out op Time. — It having been proven in this case by affidavits that the appellant in due time took an appeal from the judgment of the municipal court, and that he deposited with the secretary of said court the sum necessary to prepare the record for transmission to the district court, the order of the district court dismissing the appeal was contrary to the exercise of sound judicial discretion, and is annulled.
    Decided on the grounds of the opinion in the case of Albite v. del Tofo, No. 56, decided May 28, 1909, Porto Rico Decisions.
    The facts are stated in the opinion.
    
      Mr. Juan Guzmán Benitez for petitioner.
   Mr. Chief Justice Hernandez

delivered the opinion of the court.

Upon a sworn application for a writ of certiorari made to this Supreme Court on April 26 last by Attorney Juan de Gruzmán Benitez on behalf of José Albite, against the Judge of the First Section of the District Court of San Juan, said writ issued on the 29th of the said month of April, and in compliance therewith the record of the proceedings pending in said court with relation to the case prosecuted by José García against José Albite for the recovery of a sum of money, was forwarded to this Supreme Court, although the record of the proceedings had in the municipal court was not transmitted which, however, we may dispense with as it is unnecessary to the ends sought.

The record before us shows the following facts:

1. That a civil action was brought in the municipal court of San Juan by José García against José Albite for the recovery of a sum of money, and that judgment was rendered in said •action on December 10 of last year against the defendant, who appealed therefrom to the District Court of San Juan.

2. That on April 5 the respondent, José García, filed a pe-' tition praying that it be held that the appeal had been withdrawn on account of the abandonment thereof by the appellant, inasmuch as up to that date the record of the trial court had not been received, that no deposit had been made nor any action taken by the appellant for the perfection of the appeal.

3. That a hearing having been had on the motion, the appeal was dismissed on April 24 last in the following terms:

‘ ‘ On motion of the plaintiff and respondent of April 5, 1909, both parties having made arguments at the hearing, and the affidavits of the defendant and appellant having been considered, the court holds that appearing as it does that the municipal court rendered its judgment, admitting the complaint, on December 10, 1908, that the defendant took an appeal and that on April 12, 1909, the record had not as yet been transmitted to this court, in view of the provisions of rule 34 of the Rules of this court, of section 303 of the Code of Civil Procedure, and of the act to regulate appeals, etc., of March 11, 1908, and the jurisprudence established by the Supreme Court of Porto Rico, in the case of José López Zárate v. William Villavaso, certiorari, opinion of February 13, 1908, the appeal in this case is held to have been abandoned, with the costs against the appellant. ’ ’

The petitioner, after alleging the facts stated, maintains that the decision of this Supreme Court in the case of José López Zárate v. William Villavaso, affirming the abandonment of the appeal on the ground that the copies had not been transmitted in due time, was not applicable to this case, in which the appellant has exercised all the diligence possible to have the record transmitted in due time to the appellate court, as shown by the affidavits which he filed in said court when the motion relating to the abandonment of the appeal was heard and argued, the record for the appeal having been received in said court 12 days before the judge 'held that it had been abandoned. •

We 'have examined these affidavits, one of them signed by counsel for the appellant, Juan de :Gruzmán Benitez, another by Adrián Agosto Abadía, the acting secretary of the municipal court of San Juan in December of last year, and another by Juan López Sicardó, the secretary of said court as far back as January 4 of the current year, and these affidavits show that the defendant, Albite, in due time took an appeal from the judgment of said municipal court, serving notice thereof on the plaintiff, and that he deposited in addition $5 for costs, having on a number of occasions requested both secretaries to prepare the record for transmission to the appellate couurt, without having been able to secure it, owing to the pressure of work in the municipal court, until April 12, when the copy of said record had been concluded and sent to the appellate court.

. As will be observed, this case cannot be compared to the case of certiorari applied for by José López Zárate, decided by this Supreme Court on February 13, 1908, nor to the application for a writ of certiorari by Enrique Viñas, decided December 20, 1907, and for the reasons we stated in the opinion of this Supreme Court delivered on this date on another application for a writ of certiorari made by the said José Albite against the Judge of the First Section of the District Court of San Juan, relating to an action brought by Tomás Ferrer against the said Albite for the recovery of a sum of money, which reasons we here reproduce, we hold that the decision of the District Court of San Juan of April 24 last was opposed to the exercise of sound judicial discretion, and, therefore, should be set aside and, consequently, that it should be ordered that the appeal in question be prosecuted in accordance with the terms of the Act of March 11, 1908, to regulate appeals from judgments of municipal courts in civil actions.

Application sustained.

. Justices Figueras, MacLeary and Wolf concurred.

Mr. Justice del Toro took no part in the decision of this ease.  