
    José Segarra, Plaintiff and Appellant, v. Roberto Castellón, Defendant and Appellee.
    No. 7792.
    Argued July 19, 1938.
    — Decided July 20, 1938.
    
      A. Casanova Prats for appellant. A. Ortiz Toro for appellee.
   Me. Justice De Jesús

delivered the opinion of the court.

In this case, the notice of the judgment rendered hy the District Court of San Juan in favor of the defendant was served on the plaintiff on September 28, 1937. On the 27th of the following month thé plaintiff filed a notice of appeal and he elected the method of filing a transcript of the evidence to perfect the appeal. On November 24 the plaintiff fvas granted on motion an extension of time to file the transcript of the evidence, and similar extensions were also granted on December 27, 1927, and January 26, 1938. On the 23d of the following February the plaintiff requested a new extension for filing the transcript of the evidence, but the court did not take any action on such request. On the 28th of the next month, in spite of the failure of the lower court to pass upon that application for an extension, he requested a new'extension, but the court failed again to take any action. Since then the plaintiff has not taken further steps to perfect his appeal.

The defendant has moved tc dismiss the appeal, precisely on the ground that up to the present no transcript of the evidence has been filed in the lower court nor has any extension for that purpose been requested ever since-the 28th of last March.

The failure of the lower court to act upon the two motions for extension filed by the appellant on February 23 and March 28 last, does not relieve him from his obligation to file the transcript of the evidence within the statutory period or an extension thereof, as the ease may be. If the judge of the lower court failed to pass upon the motions, the appellant should have insisted in having him do so and, if unsuccessful, he could have resorted to the legal remedy afforded him by the law in such a case, that is, by applying to this court for a. writ of mandamus.

In our judgment, the manifest neglect on the part of the plaintiff and appellant in prosecuting his appeal is no justification at all for this court to exercise its discretion and grant a new term for filing the transcript of the evidence.

For the foregoing reasons, a dismissal of the appeal lies.  