
    Cajigas v. Succession of Prats.
    Appeal from the District Court of Mayagüez.
    No. 19.
    Decided February 12, 1904.
    Contracts — Obligations—Contracting Parties. — Obligations growing out oí contracts are of legal force between the contracting parties and must be fulfilled in accordance with their stipulations.
    Id. — Obligations—When Demandable. — Obligations which have a fixed period for their fulfillment are demandable from the time such period expires.
    Id. — Fulfillment of Obligations — Delay—Indemnity—Interest.—Parties who are guilty of delay in the fulfillment of obligations are liable to an indemnity for losses and damages, and such indemnity shall consist in the payment of the interest agreed upon, or, in the absence of an agreement, of legal interest, in cases in which the obligation consists in the payment of a specific sum of money.
    Heirs — Creditors.—Heirs succeed the deceased in all his rights and actions, and the creditors of the latter may present their claims against any of the former.
    Parties- — -Proof of Confession. — When a party has been twice summoned to answer questions without having appeared or pleaded any just cause for his neglect or failure to do so, he is properly held to have made a confession.
    Costs. — Costs should be imposed upon the litigant whose claims are wholly rejected.
    Legatees — Heirs—Voluntary Testamentary Proceeding — Liquidation of the Estate. — The legatees of an aliquot part of the estate are not obligatory parties in the proceedings instituted by the heirs of the deceased, inasmuch as they do not have the latter’s representation, which pertains exclusively to the heirs, without prejudice to the right of the legatees to institute voluntary testamentary proceedings and to intervene in the liquidation of the estate.
    
      Appeal- — Correction oe Errors. — Errors, the eorreetion of which has not been applied for at the proper time, shall be considered as assented to and cannot constitute a ground for the reversal of the judgment appealed from.
    STATEMENT OE THE CASE.
    In the matter of a declaratory action prosecuted in the District Court of Mayagüez for the recovery of money, between José Cajigas, as plaintiff, represented by Francisco Pelegri, attorney at law, and, as defendant, the Sncession of Eosendo Prats Freixas, consisting of his widow, Eosa Yidal, his daughter, Esperanza Prats, the infants, Isabel, Elena and Jaime, children of Eosendo Prats Padilla, represented by their mother, Celeste Jaqnot, and the acknowledged natural children, Francisco and Eugenio Prats, the former represented and defended by their counsel, Luis Campillo y Abraham, the last two having been declared in default; which case is pending before ns on appeal in cassation for' error of procedure, now ordinary appeal, taken by counsel for the defendants, Eosa Vidal, Esperanza Prats and Celeste Jaqnot, and by Ofelia López, from the judgment rendered by said District Court July 31, 1901, which reads as follows:
    “Judgment. — In the city of Mayagüez, July 31, 1901, Arturo Aponte y Rodriguez, presiding judge, James A. Erwin, associate judge, and Luis Méndez Vaz, supplementary judge, composing the District Court thereof.
    “This action for the recovery of a sum of money prosecuted between Juan Vázquez, attorney at law, and afterwards Francisco Pelegri, attorney at law, on behalf of José Cajigas, a resident of this city, engaged in industrial pursuits, as plaintiff, and Luis Campillo, attorney at law, on behalf of Rosa Vidal, Esperanza Prats and Celeste Jaquot, widow of Prats, representing her legitimate infant children, as defendants, the two first-mentioned being residents of this place and the last residing in San German, has been duiy heard before the. district court.
    “On July 12, 1900, José Cajigas, through his counsel, Juan Váz-quez, filed a petition requesting a writ of cautionary attachment' against the estate of Rosendo Prats, which, upon his furnishing the-necessary security, was issued for the account and at the risk of the-creditor, on the 16th of said month and year, and levied the same-day on several pieces of real property of the party defendant.
    “On August 1, 1900, said counsel brought the proper declaratory action for the purpose of haying the defendant adjudged to pay four thousand five hundred and eighty-one pesos, interest and costs, and praying at the same time that the cautionary attachment referred to above be -ratified.
    “Notice of said action having been served upon the defendant,. Luis Campillo, attorney at law, appeared on behalf of Rosa Vidal,. Esperanza Prats and Celeste Jaquot, as the representative of her-minor children, and prayed that the complaint be dismissed with costs against the plaintiff, inasmuch as Ofelia and Amelia López, legatees of an aliquot part of the estate, had not been summoned..
    “The heirs, Francisco and Eugenio Prats, whose domicile is unknown, having been summoned by publication twice in succession, and failing to appear in time, on motion of the plaintiff were declared in default.
    ‘ ‘ The offering of evidence having been set for May 18, of the same year, both parties appeared and submitted such evidence as was deemed favorable to their respective claims, which, being considered pertinent, they were cited for the oral trial to take place on the 14th of June last.
    “At the oral trial counsel for defendants moved that the proceedings so far had be declared void, inasmuch as the legatees herein-before mentioned had not been summoned to appear, which motion was overruled by the court in an order setting forth the reasons upon which it was based.
    ‘1 The defendants having failed to appear at the oral trial to identify the signatures at the bottom of the documents and testify as to the authenticity of the promissory notes and certainty of the debt, plaintiff asked that the proceedings be suspended and the heirs be again summoned and warned to appear or be considered as admitting the facts as stated in the complaint, which petition was acceded to by the court, and the trial suspended in conformity therewith.
    “The 20th of July having been again fixed for the holding of the trial, defendants again failed to appear for the above-mentioned purpose, whereupon plaintiff prayed that they be declared to have admitted the facts of the complaint, and immediately thereafter the expert witness, Alejandro Diaz, being examined, testified that the signature authorizing the promissory notes which gave rise to the claim, upon comparison with others of undoubted authenticity, was the same used by Rosendo Prats, from whom the defendant inherited.
    “A day having been set for the voting of the judgment, it took place this day at the appointed hour, said judgment being unanimously approved.
    “In the conduct of this trial the rules of procedure have been observed.
    “Luis Méndez Yaz delivered the opinion of the court, as follows:
    “Obligations arising from contracts have legal force between the contracting parties, and must be fulfilled in accordance with their stipulations.
    “Obligations, the fulfillment of which has been fixed for a day certain, shall be demanded when the proper day arrives.
    “Those who are guilty of delay in fulfilling their obligations are bound to indemnify, and when the obligation consists in the payment of a sum of money, the indemnity for losses and damages shall consist in the payment of the interest agreed upon, and should there be no agreement, in that of the legal interest.
    ‘1 Heirs succeed the deceased in all his rights and actions, and the creditors of the latter may direct their claims against any of the former.
    ‘ ‘ Should any party who has been twice summoned to answer questions put by the opposite party fail to appear or show good cause for non-appearance, his absence shall be taken as a confession.
    “The weighing of expert evidence is left to the discretion of the court, and in the present case it should be considered as being favorable to the plaintiff.
    
      “Costs shall always be paid by the litigant who loses his ease on all points.
    “Having examined articles 661, 1084, 1089, 1091, 1101, 1108, 1125 and other applicable articles of the Civil Code, articles 592, 609 et seq. of the Law of Civil Procedure, and General Order No. 118, we adjudge that we should sustain and do sustain the complaint and accordingly defendants are condemned to pay the sum claimed, with legal interest from the date of the institution of the suit, and costs of this trial.
    “Thus, by this our decision, finally adjudging, do we pronounce, order and sign: Arturo Aponte, J. A. Erwin, Luis Méndez Vaz.”
    From this judgment the representatives of Eosa Vidal, Esperanza Prats and her husband, Miguel Casanova, and Celeste Jaquot, on behalf of her minor children and of Ofelia López, entered an appeal in cassation for error of procedure, under paragraphs 1 and 4 of article 1691 of the Law of Civil Procedure, because Amelia and Ofelia López had not been cited to answer the complaint, as they should have been, inasmuch as they formed part of the Succession of Eosendo Prats, as legatees of an aliquot part of said estate, nor had notice been given in court to the parties in default, Francisco and Eugenio Prats, of the order summoning the parties for the proffer of evidence found at folio 102, reverse side, nor of that found at folio 108, reverse side; nor had they been cited for the taking of the evidence offered and admitted, nor for the oral trial or judgment, as should have been done before the rendition thereof. The appeal being admitted, the record of the case was sent up to this Supreme Court, the parties being summoned to appear, and after correcting the omission of notice of the final judgment to the defendants in default, Francisco and Eugenio Prats, which was .done by publication in the local papers, the proceedings took place in conformity with the provisions of an act of the Legislative Assembly of this Island establishing the Supreme Court of Porto Eico as a court of appeals, a day was set for the hearing, and after citing the parties said Rearing took place, counsel for respondent being present.
    
      Mr. Vázquez (Fernando), for appellant.
    
      Mr. Alvarez Nava, for respondent.
   Mr. Chief Justice Quiñones,

after making tbe above statement of facts, delivered tbe opinion of tbe court.

Tbe findings of fact and conclusions of law contained in tbe judgment appealed from are accepted.

Moreover, as to tbe failure to cite Ofelia and Amelia Ló-pez, legatees of an aliquot part of an estate, they are not necessary parties to a suit brought by creditors for tbe recovery of tbe deceased’s outstanding debts, since they are not invested by tbe law with tbe representation of tbe latter, wbicb exclusively appertains to tbe beirs, without prejudice to tbe rights of said legatees to intervene in the settlement of tbe estate, for wbicb purpose they may institute voluntary testamentary proceedings, under article 1038 of tbe Law of Civil Procedure.

As to tbe failure to notify and cite tbe defendants, Francisco and Eugenio Prats, who were declared in default, and have so continued, inasmuch as appellants did not request in time tbe correction of this defect, wbicb they could have done at tbe oral trial, as was done for tbe purpose of correcting tbe failure to cite tbe other legatees, Ofelia and Amelia López, tbe appellants must be considered as having acquiesced therein, and said omission cannot be availed of by them to request tbe reversal of tbe judgment appealed from.

Having examined tbe legal provisions cited in said judgment, we adjudge that we should affirm, and do affirm, tbe judgment appealed from, with costs of these proceedings against tbe appellants.

Justices Hernández, Sulzbacher and MacLeary concurred.

Mr. Justice Figueras did not sit at the hearing of this case.  