
    Hernández v. Cabassa et al.
    Appeal from the District Court of liumacao.
    No. 264.
    Decided May 28, 1908.
    Demurrer — Order—Dismissal oe Appeal. — An order made by a judge sustaining a demurrer to the complaint is not appealable because it is not included among those enumerated in paragraph 3 of section 295 of the Code of Civil Procedure, and ,does not constitute a judgment according to the definition thereof contained in section 188 of the said Code.
    Id. — Decision and Opinion. — Where in a decision of a demurrer an opinion is rendered, the trial 'court must confine his opinion to the matter in eontra-versy- — that is to say, the allegations of the demurrer — and render Ms decision thereon separately, stating that the defendants filing the demurrer prayed for judgment.
    The facts are stated in the opinion.
    
      Mr. Texidor for appellant.
    The respondent did not appear.
   Mr. Justice Hernández

delivered the opinion of the court.

On September 3, 1907, Agustín Hernández Mena; assignee of Margarita and Rosario G-arcía Hernández, filed a complaint in the District Court of Mayagüez against Leopoldo Cabassa y Pica and Antonio Cabassa, with the prayer that in due time judgment be rendered against the defendants with the following pronouncements: 1. Declaring the nullity of the proceeding and civil action, No. 378, year of 1904, prosecuted in said district court by Leopoldo Cabassa y Pica, for the recovery of $2,178.09 against the Estate of Diego Garcia Saint Laurent; of the writ of execution issued to satisfy the judgment rendered in said action, of the public sale held under such writ of execution, and of the deeds executed by the marshal for the purpose of effecting the sale of the property awarded to Leopoldo Cabassa y Pica; 2. Likewise declaring the nullity of the payments made by Leopoldo Cabassa y Pica of the sums covered by the notes mentioned in the complaint owed by Diego Garcia Saint Laurent, and also the nullity of the acknowledgment of an account current made by Antonio Ca-bassa; 3. Adjudging Leopoldo Cabassa to make restitution to tbe Estate of Diego Garcia Saint Laurent of tbe personal and real property, subject of tbe public sale in aforesaid action wbicb were awarded to Leopoldo Cabassa, sucb restitution on tbe part of botb defendants to comprise tbe fruits, rents, products, and interest of said property from September 14, 1904, to tbe date tbe restitution is made; 4. Further adjudging botb defendants, in case tbe restitution of tbe personal and real property with, tbeir fruits and interest should not be possible to indemnify tbe plaintiff, representing tbe rights of Margarita and Rosario Garcia Saint Laurent, in tbe sum of $2,000, tbe costs and. expenses of tbe proceedings being taxed against tbe defendants.

A number of facts are alleged in tbe complaint as constituting tbe causes of action exercised, and botb defendants, under tbe direction of different lawyers, demurred to said complaint, Antonia Cabassa alleging a defect in tbe complaint and a misjoinder of actions, and. Leopoldo Cabassa y Pica that tbe complaint did not state facts sufficient to constitute a cause of action.

Said demurrers having been argued tbe judge of tbe lower court delivered a written opinion on January 20 of tbe current year, in wbicb, after setting forth tbe grounds of the demurrers of tbe defendants, be stated:

“These demurrers were argued in open court by counsel for the parties, the court having reserved judgment. On this date, after having carefully considered the complaint and the demurrers thereto as well as the oral arguments of the attorneys, it concludes that the law is against the plaintiff and therefore holds that the three grounds alleged should he, and the same are, sustained.”

Tbe judge continues setting forth tbe reasons why sucb exceptions are tenable, and closes in tbe following terms:

“For the reasons stated the court is of the opinion that the complaint should be dismissed with the costs against the plaintiff. ’ ’

On tlie 28th of January aforesaid counsel for Agustín Hernández Mena filed with, the secretary of the district court a notice of appeal from the decision of the court sustaining the demurrers filed to the complaint by the defendants and dismissing the complaint, and on March 11 he filed in the office of the secretary of the Supreme Court the transcript of the record for the decision of the appeal, the hearing on which was had on April 9 last, at which only the appellant appeared.

As will be seen from the foregoing statement, the appeal was taken from a decision of January 20,1908, sustaining the demurrers to the complaint and dismissing said complaint.

"We find in the record the opinion of the judge of the Maya- ■ gfiez court which states at the beginning thereof that he must sustain, and does sustain, the demurrers on the three grounds alleged therein, and at the conclusion, that the complaint should be dismissed ^yith the costs against the plaintiff.

The lower court should have confined its opinion to the matter discussed — that is, to the demurrers filed — and rendered a separate decision with regard thereto. It was not a proper moment to express an opinion on the judgment which should be rendered according to law, becanse to do so he should have waited until the defendants who had demurred had prayed for judgment in their favor.

Then it would have been proper to give an opinion on the merits of the matter and render the final decision in the form of a judgment.

We admit, in view of the terms of the opinion of the judge, that he rendered a decision on the demurrers filed; but such decision from its nature is not appealable, inasmuch as it is. not one of those specified in subdivision 3 of section 295 of the Code of Civil Procedure, although in accordance with section 213 of the said Code, it must be deemed as accepted to, and therefore the same may be reviewed on appeal, it being a necessary condition therefor that the appeal be taken from the judgment.

Tu the present case there is no judgment, because the opinion of the judge to the effect that he should dismiss the complaint with the costs against the plaintiff, cannot be legally considered as such, according to the definition of a judgment contained in section 188 of the Code of Civil Procedure.

Such opinion may at the utmost and in a broad sense be a decision of the court, in accordance with which the judgment should have been entered pursuant to the provisions of section 227 of the aforesaid code.

As there is no real judgment appealed from,' or no copy thereof having come up with the record, we have no basis on which to discuss and decide the appeal taken, and therefore it should be dismissed with the costs against the appellant.

Dismissed.

Chief Justice Quiñones and Justices Pigueras, MacLeary and Wolf concurred.  