
    Hernández v. Tornabells & Co.
    Appear from the District Court of Mayagfiez.
    No. 571.
    Decided May 24, 1911.
    Appeals From Municipal Courts — Unappealable Orders — Revision op Orders. — In accordance with the law regulating appeals from municipal courts, approved March 11, 1908, all orders or rulings of a municipal court setting aside a judgment rendered in default and the attachment levied for the execution thereof, or refusing the reconsideration of a previous order de-daring null the adjudication of a property erroneously sold at public auction, all of which orders have been made in the same suit wherein a final judgment 'was rendered declaring that the plaintiff had abandoned his complaint and sentencing him to the payment of a certain sum of money, are unap-pealable, as the aforesaid three orders may be reviewed by the district court in hearing the appeal taken from the final judgment.
    Intervention in Regard to Eeal Property — Annulment ojt Attachment and Adjudication Requested by Dependant. — The proceeding provided by the Act of March 12, 1908, to regulate trials in connection with title to real property, is not applicable to the ease where the defendant himself prays for and obtains the annulment of an attachment and an adjudication which were erroneously ordered, since, said law refers only to eases where the property of third persons who are not parties to the suit is erroneously attached.
    The facts are stated in the opinion.
    The appellant appeared in his own behalf.
    
      Mr. Víctor P. Martinez for respondents.
   Mr. Chief Justice Hernández

delivered the opinion of the court.

On September 7, 1909, Agustín Hernández Mena filed a complaint in the Municipal Court of Mayagiiez against Tor-nabells & Co., their receivers, successors, or legal representatives, to recover $412.80, the balance of a promissory note for a greater amount which was executed by said firm to the order of José Cajigas, whose property had been transferred to the plaintiff, and Camilo Suriñach, who, as receiver of the firm of Tornabells' & Co., had been personally cited, according to the sworn statement of Manuel Parra, not having appeared in due time to answer the complaint his default was entered and a judgment rendered on'September 20 by which he was adjudged to pay the sum claimed and the costs.

In order to secure the effectiveness of said judgment, an urban property belonging to Tornabells & Co., in liquidation, was attached on October 18 following.

The defendants, by a motion of November 1 of said year, requested the aforesaid municipal .court to set aside the judgment rendered and to dissolve the attachment levied for the execution thereof, on the ground that the court had been deceived by Hernandez Mena, who alleged as grounds for his action the existence of a promissory note which was not signed by Tornabells & Go., bnt by J. Tornabells & Co., who .are two entirely different parties. Moreover, tbe summons was served by a person unqualified to serve tbe same — that is, by an employe of tbe plaintiff.

Tbe aforesaid motion was sustained by tbe court by order of tbe 17tb of said November, and Hernández Mena requested tbe reconsideration of tbe same, wbicb motion was dismissed by another order of December 4 following. An appeal to tbe District Court of Mayagfiez was taken by bim from botb orders.

By an order of tbe 16tb of tbe same month of December said municipal court sustained another motion filed by tbe defendant firm, wherein they prayed for tbe annulment of tbe adjudication to Hernández Mena of tbe property attached, wbicb adjudication was made by tbe marshal of tbe municipal court on tbe 16th of tbe previous month of November. From tbe aforesaid decision tbe plaintiff also appealed to tbe district court.

In tbe course of tbe proceedings tbe firm of Tornabells & Co. answered tbe complaint, denying all tbe facts alleged therein, and filed a counterclaim praying that upon tbe dismissal of tbe complaint by judgment tbe plaintiff be adjudged to pay tbe sum of $200 as damages suffered by tbe defendants and the costs and necessary expenses of tbe suit. They alleged that tbe promissory note, subject matter of tbe action, was due by J. Tornabells & Co. and not by Tor-nabells & Co.; that summons bad not been personally served on tbe receiver of Tornabells & Co., Camilo Suriñach, notwithstanding tbe fact that tbe plaintiff’s employe, Manuel Parra, bad so sworn; that for this reason tbe complaint was not answered in due time and a judgment was rendered in ■default, for tbe execution of wbicb an attachment was levied on an urban property belonging to Tornabells & Co., who were not bound to pay tbe debt since such payment devolved •on J. Tornabells & Go.

December 24, 1909, was set for tbe bearing of the case by tiie municipal court, and the plaintiff not having appeared, it was held, upon motion of the defendant, that he had abandoned his complaint; and in regard to the counterclaim a judgment was rendered on the 27th of the same month ordering that the defendant firm should recover from the plaintiff the amount of $100, at which the damages caused the defendant were estimated. The costs were also taxed against the plaintiff, Hernández Mena.

From the aforesaid judgment Hernández Mena took an appeal to the District Court of Mayagiiez, wherein a final judgment was rendered as follows:

“This case, which is before the court by virtue of an appeal taken from a judgment, rendered by the Municipal Court of Maya-giiez, was called for trial on February 17, the plaintiff having appeared personally and the defendants through their counsel, Victor P. Martinez.
“The orders of the municipal court setting aside the judgment in default rendered in this case and annulling the attachment and sale which were made in consequence thereof having been previously argued, the court decided that as it does not appear that the municipal judge abused the discretion which is conferred upon him by section 140 of the Code of Civil Procedure, his orders must be affirmed. The order of the municipal judge, by which the plaintiff was held to have abandoned his suit because he did not appear on the date of the trial having been considered, it is also affirmed. The trial of the counterclaim having begun, the evidence was taken and counsel for both parties presented their arguments. The court reserved decision until to-day, when it declares that, although some irregularities in the prosecution of this suit may be observed, they are merely of form and were agreed to by the parties and therefore are not a bar to the rendition of judgment.
“Therefore it is declared by the court that the law and the facts; are in favor of the defendant firm, and hence it is ordered that the firm in liquidation, Tornabells & Co., recover from the plaintiff, Agustín Hernández, the sum of $75 and the costs of this suit.
“Let this judgment be entered in the proper, book of this court and a certified copy thereof be issued to the Municipal Court of Mayagiiez for compliance therewith.
“Given in Mayagüez on the 1st of March, 1910. Otto Schoenrieh, District Judge.”

From the foregoing judgment, and from each and all of the orders specified therein, an appeal was taken by Her-nández Mena to this Supreme Court.

Section 1 of an act to regulate appeals from judgments of municipal courts in civil cases, approved March 11, 1908, allows appeals from judgments rendered in civil cases, which finally decide them in favor of the plaintiff or of the defendant, to the district court for the judicial district in which the municipal court is situated. Section 3 of the same law provides that when the appeal is called for trial the district court shall, on motion of the appellant, review and consider any preliminary orders, decisions, or rulings by which he considers himself to have been aggrieved, after which the cause shall proceed to trial, and the complaint or answer having been amended when proper, the trial shall be held as a trial de novo, and shall be governed by all the provisions of law and rules of court affecting trials of actions originally brought in the district courts.

In view of said legal provisions, we are of the opinion that an appeal to the district court for the judicial district of the same name from the judgment rendered by the Municipal Court of Mayagüez on December 27, 1909, deciding that the plaintiff had abandoned his complaint and adjudging him to pay to the defendant the sum of $100 for damages sustained by the latter was proper, but that such appeal from the orders of the municipal court, dated November 17, 1909, setting aside a judgment in default and the attachment levied for the execution thereof from the order of December 4 following, denying the reconsideration of the first order, and from the third order of December 16 declaring null the adjudication made to Hernández Mena of the property sold at public auction, which three orders were appealed to the District Court of Mayagüez, as stated above, did not lie. Such orders are not appealable, but reviewable by said district court in considering the appeal taken from the final judgment previously rendered by the municipal court and before the new trial of the case was held. As a consequence of the above doctrine, the Municipal Court of Mayagfiez did not lose its jurisdiction by virtue of the appeals taken from the aforesaid orders, as alleged by the appellant, but, on the contrary, said court retained such jurisdiction to proceed with and decide the case by a final judgment, because said appeals were clearly improper. And the District Court of Mayagfiez acted properly in affirming the orders submitted to it for revision by virtue of the appeal taken from the final judgment of the municipal court, inasmuch as it does not appear from the record that the municipal court abused the discretional power with which it is vested to annul the judgment rendered in default and the proceedings in regard to the attachment and adjudication of the urban property belonging to the defendant, which were instituted to secure the effectiveness of said judgment. Section 140 of the Code of Civil Procedure, which has been cited by counsel for Her-nández Mena in his defense, • has not been violated, but, on the contrary, duly applied to the case.

Nor can it be alleged, as alleged by the party appellant, that in annulling the judgment rendered in default of the defendant and the attachment and adjudication proceedings the law of March 12, 1908, relative to the procedure in cases of intervention with respect to real property, to which it is pretended that Tornabells & Co. resorted in order to defend the rights they may have had, was violated. This law was not applicable to the case, since Tornabells & Co. was the party defendant in the trial and an urban property of theirs had been attached and later adjudicated to the plaintiff, Her-nández Mena, to secure compliance with an obligation which was imposed erroneously on them by a judgment rendered in default, said obligation having been contracted by a different firm which was not a party to the case. If this action bad been instituted against J. Tornabells & Co., and if a bouse belonging to Tornabells & Co. bad been attached to answer for tbe result thereof, then tbe latter conld have resorted to tbe aforesaid law in order to defend their title of ownership to said bouse, bnt not in tbe case at bar wherein Tornabells & Co. are not third parties, bnt a party to tbe case.'

Nothing is alleged by Hernández Mena against tbe order of tbe District Court of Mayagüez affirming that of tbe municipal court deciding that tbe plaintiff bad abandoned bis suit in view of bis nonappearance at tbe trial of tbe same. Tbe provision of section 192 of tbe Code of Civil Procedure is so clear that no mistake can be made in tbe application thereof.

Neither has tbe affirmance of said order prejudiced Her-nández Mena, inasmuch as be appeared in person in tbe district court where tbe case was to be tried de n'ovo and be could have requested a bearing and offered evidence. This be failed to do, and therefore bis complaint was abandoned and unproved.

Tbe appellant invokes section 1182 of tbe Code of Civil Procedure and 108 of tbe Law of Evidence in support of bis appeal, because be bolds that tbe defendant has not established in any form tbe counterclaim alleged in bis answer. No endeavor has been made to show that tbe trial court committed error in weighing tbe evidence, and having examined tbe probatory elements in tbe case we find that far from being erroneous such estimation is in accordance with tbe facts and tbe law.

Por tbe foregoing reasons we are of tbe opinion that tbe appeal cannot be sustained, and that tbe judgment rendered by tbe District Court of Mayagüez on March 1 of tbe year last past should be affirmed.

Affirmed.

Justices MacLeary, Wolf, and del Toro concurred.

Mr. Justice Aldrey did not take part in tlie decision of this case.  