
    Borinquen Marrero-Ríos, Plaintiff and Appellee, v. Gustav L. Muller, Defendant and Appellant.
    No. 3817.
    Argued January 25, 1926.
    Decided January 28, 1926.
    Appeal — Amount in Litigation — Action Originating in Municipal Court. — The ruling of a district court dismissing an appeal in an action involving more than $300 originating in a municipal court is appealable to this court.
    Motion for dismissal.
    
      Overruled.
    
    
      Rafael Sancho Bonet for the appellant. Sebastián García Díaz for the appellee.
   Mr. Justice Aldrey

delivered the opinion of the court.

The appellee moves for dismissal of this appeal taken from a ruling of the District Court of San Juan dismissing an appeal from a judgment of the municipal court against the defendant for the sum of $400 with interest and costs, it being alleged in the motion that the ruling of the district court is not appealable under the act governing appeals from municipal courts and section 304 of the Code of Civil Procedure.

The question now is not whether the action of the district judge in dismissing the. appeal taken from the municipal court was correct or erroneous because that is a matter involved in the present appeal, but whether the appeal taken from the said ruling of the district court should be dismissed. However, the grounds on which the appellee bases his motion to dismiss refer to the main question in this appeal, for Act No. 93 of 1917, promulgated in 1919 by the Executive Secretary of Porto Rico in an appendix to volume II of the Acts , of 1917, on which the motion is based, provides that if the appellant in a municipal court should fail to solicit the inclusion of the action in the calendar of the district court, the judge of the latter court shall declare this appeal abandoned, and we find nothing in that Act which provides that such ruling dismissing the appeal is not appealable to this court.

Section 303 of the Code of Civil Procedure is not applicable to this motion, for it provides that if the appellant should fail to file the documents required, the appeal should be dismissed, and it is not alleged that the appellant has failed to file in this court the documents necessary for the consideration of his appeal. Nor is section 304 of that Code applicable because it refers only to the effects produced by the dismissal of an appeal.

The ruling appealed from being of such a nature that it puts an end in the district court to an action involving an amount greater than $300 which originated in the municipal court, we believe it is appealable under subsection 2 of section 295 of the Code of Civil Procedure as amended by the Act of March 9, 1905, Comp. 1911, section 5338, and although by a ruling like the one appealed from this court issued a writ of certiorari in the case of Cividanes v. López Acosta, 22 P.R.R. 74, it was discharged later, and although in our decision it was not stated that the said ruling was appealable, yet the mere fact of issuing a writ of certio-rari did not indicate that the ruling was unappealable, for it is discretional to issue a writ of certiorari notwithstanding the remedy by appeal when in our judgment the interests of justice require it.

For the foregoing reasons the motion to dismiss is overruled.  