
    Guillermo Ortiz Guzmán, Petitioner and Appellee, v. Leopoldo Venegas, Mayor of Coamo, Respondent and Appellant.
    
    No. 5234.
    Argued December 8, 1930.
    Decided December 11, 1930.
    
      
      E. Ramos Antonini for appellant. Manuel A. Rivera and Leopoldo Tormos for appellee.
    
      
       See ante, p. 469.
    
   Mr. Justice Aldrey

delivered the opinion of the Court.

After an appeal had been taken from a judgment of the District Court of Ponce on appeal from an order made by the Mayor of Coamo, the latter applied for several extensions of time to prepare the transcript of the record of his appeal. During one of such extensions, the appeal was dismissed by this court and the appellant did not request further extensions.

Prior to the dismissal of that appeal we issued a writ of certiorari to review an order of the lower court decreeing the execution of its judgment notwithstanding the pendency of the appeal, and we directed that the original record of the proceedings in which it had been rendered be sent to us.

In dismissing the appeal from the judgment on the 31st of last May, because in our opinion no right of appeal existed with respect to such judgment, we also quashed the writ of certiorari previously issued.

On June 10 the appellant moved for a reconsideration of those two decisions and on July 30 we granted the motion and vacated those decisions; which left pending before us the appeal from the judgment and the writ of certiorari. In this situation, a dismissal of the appeal is again sought for failure to timely file the transcript of record-in this court. Prior to the hearing of that motion, the appellant had applied to ns for a new extension of time to file such transcript, based on the facts already mentioned and stating that he had failed to apply for further extensions of time by reason of the dismissal of his appeal, but that, as the appeal had been reinstated, we should grant him a new extension, in the exercise of our discretion. Another ground advanced was that the original record was kept in this court owing to the issuance by us of the writ of certiorari already referred to.

At the time of the filing of that application, the original record of the appeal was in this court and on the same day, or tlie 31st of last October, the secretary of this court returned it to the District Court of Ponce, at the instance of the appellee. This court granted the new extension applied for without prejudice to the pending motion to dismiss, which was heard on the 8th instant. The appellant, on that same day, filed the said transcript in this court.

In view of the foregoing facts; that, the appeal having been dismissed, it was unnecessary for the appellant to apply for new extensions of time to perfect it, and that, although it is true that he ought to have applied to this court for a new extension when his appeal was reinstated on July 31 and his failure to do so is not justified by the fact that this court’s recess was to commence three days thereafter, yet the circumstances of the present case are of such a character —bearing in mind also that the original record was kept in this court until October 31 and the transcript filed on the day of the hearing of the motion to dismiss, within the new extended time granted by us to the appellant — that we do not think that we should dismiss the appeal on the ground urged. Therefore, the motion of the appellee must be denied.  