
    Batista et al., Plaintiffs and Appellants, v. Benítez, Defendant and Appellee.
    Appeal from the District Court of San Juan in an Action for Damages.
    No. 2275.
    Decided November 9, 1920.
    Appeal — Tbanscbipt oe Recced. — The transcript of the record in this case having been filed after the time allowed and after the appellant had been served with, notice of a motion for dismissal of tlie appeal, and it appearing also that the appellant had two months within which to file the transcript, there is no basis for the exercise by the Supreme Court of its discretion in favor of the appellant; therefore the appeal will be dismissed.
    Tlie facts are stated in the opinion.
    
      Mr. Hugh R. Francis for the appellants.
    
      Mr. M. Ginorio for the appellee.
   Mr. Justice del Toro

delivered the opinion of the court.

The appellee in this case moved for dismissal of the appeal. It appears that plaintiff appealed from a judgment against him and prepared a statement of the case which was approved by the trial court on. May 28, 1920. On June 30, 1920, the plaintiff moved for and obtained from this court an extension of thirty days from thé 27th of that month within which to file a transcript of the record. The appellant having failed to file the transcript within the said period, on July 28 the appellee filed a motion, notice of which had been given to the appellant, for dismissal of the appeal in accordance with section 299 of the Code of Civil Procedure, as amended by Act No. 81 of 1919, and Bule 40 of this court. On the same day the appellant asked for more time within which to file the transcript and his- request was denied. On July 31 he filed the transcript. The. court took its vacation and the motion for dismissal did not come on for hearing until November 1, only the appellee appearing by his attorney.

The transcript not having been filed within the time fixed by law and the extension allowed by the court, the right of the appellee to move for dismissal of the appeal is unquestionable. As to this there can be no doubt whatever. Tt remains only to be considered whether the fact that the transcript was filed before the motion came on for hearing, although after the expiration of the time allowed, is a good defense.

If the transcript had been filed after the expiration of the time allowed, but before'the motion to dismiss was made, the question should be decided in favor of the appellant; but as it was filed thereafter and it further appears that the statement of the case was approved on May 28 and that the appebant had two months within which to file the transcript and did not do so, we are of the opinion that there is no basis for the exercise by this court of its discretion in favor of the appellant.

The appeal should be

Dismissed.

Chief Justice Hernández and Justices Wolf and Aldrey concurred.

Mr. Justice Hutchison took no part in the decision of this case.  