
    Hernández, Petitioner, v. Hutchison, District Judge, Respondent.
    Application for a Writ of Certiorari to tlie Judge of the District Court of Mayagüez in an action of debt begun in the Municipal Court of Mayagüez.
    No. 123.
    Decided May 29, 1914.
    Death op Party — Judgment Against Deceased Party — Substitution op Party. — A judgment rendered by a court against a party who has died, of which faet evidence was introduced before the trial was held, is void. In such cases the action should be continued against the representative or successor of the deceased pursuant to the provisions of section 69 of the Code of Civil Procedure.
    Id. — Appeal in Name op Deceased — Substitution op Party. — An appeal taken in the name of a party who has died or in the name of a brother of the deceased who has not been substituted as a party pursuant to the provisions of section 69 of the Code of Civil Procedure, is void.
    Certiorari — Writ op Eight — Error op Procedure — Discretion op Court.— When a writ of certiorari is employed to correct the procedure of a lower court it is not a writ of right and should be issued only when a special reason therefor is shown to the court and the court is vested with judicial discretion to grant or deny the same as justice in each case may require.
    Id. — Error op Procedure — Laches.—When, as in the case at bar, a writ of certiorari is employed to correct errors of procedure and the application for the writ is filed eight months after the entering of the order sought to be set aside and no special reasons are given for the delay and the order objected to, although erroneous, is just, the writ of certiorari must be denied.
    Tbe facts are stated in the opinion.
    Tbe petitioner filed a brief pro se.
    
    Tbe respondent did not appear.
   Mr. Chiee Justice Hernández

delivered tbe opinion of tbe court..

Tbe present application for a writ of certiorari was presented by Agustín Hernández Mena on May 1 for tbe purpose of having tbis court review tbe proceedings in tbe District Court of Mayagüez in an appeal from a judgment rendered by tbe Municipal Court of Mayagüez in an action prosecuted therein by Agustín Hernandez Mena against Ave-fino Martinez Mercado for tbe recovery of tbe sum of $500, praying that by said review this court annul the orders of the said District Court of Mayagiiez of February 10 and Angnst 18, 1913.

By tbe first of said orders, or that of February 10, 1913, the District Court of Mayagiiez overruled a motion by Her-nández Mena for an order declaring null and void the notice of appeal of Attorney José Benet appealing from the judgment rendered by the Municipal Court of Mayagiiez on July 29, 1912; and by the second, or that of August 18, 1913, the said District Court of Mayagiiez sustained a motion of Attorney José Benet filed in the name of Manuel Martinez Mercado praying for the annulment of all proceedings had in the case since June 3, 1912, when defendant Avelino Martinez Mercado died.

It appears from the record that dhe Municipal Court of Mayagiiez rendered in the case referred to ■ the following judgment:

“The present ease was called for trial to-day, July 29, 1912. The plaintiff only appeared and introduced his documentary and oral evidence. The witnesses were examined and the plaintiff argued his case.
“After hearing the evidence and the allegations of the plaintiff, the court sustains the complaint and as a consequence gives judgment against the defendant, Avelino Martinez Mercado, and in favor of the plaintiff, Agustín Hernández Mena, for the sum of $500 and the costs. Let a writ of execution he issued to the marshal. Mayagüez, P. R., July 29, 1912. (Signed) G. H. Moscoso, Municipal Judge. ’ ’

An .appeal was taken from the said judgment in the following terms:

“To the secretary of the court and to the plaintiff, Agustín Her-nández Mena:
“You are hereby notified that not being satisfied with the judgment rendered by this court in this case on July 29 last, I appeal therefrom to the District Court of Mayagüez. Mayagüez, P. R., August 1, 1912. (Signed) José Benet, Attorney for the Defendant.”

In support of Ms application for a writ of certiorari Agus-tín Hernández Mena alleges that it was proven before the Municipal Court of Mayagüez before proceeding to trial that the defendant, Avelino Martinez Mercado, had died on June 3, 1912, without leaving ascendants or descendants, his next surviving kin being several brothers, among them Manuel Martinez Mercado who so testified, and that it not having-been ordered that the action should continue against the representative or successor of the deceased, as provided for by section 69 of the Code of Civil Procedure, Attorney José Benet was not empowered to take an appeal in the name of Manuel Martinez Mercado and had no legal capacity to solicit the nullity of the proceedings.

It being true, as shown by the record, that Avelino Martinez Mercado died on June 3, 1912; that the Municipal Court of Mayagüez had knowledge of that fact from the testimony of Manuel Martinez Mercado, a brother of the defendant who testified at the instance of the plaintiff, Agustín Hernán-dez Mena, and that notwithstanding the death of the defendant the case was tried and judgment rendered against him instead of continuing the action against the representative or successor in interest of the deceased, pursuant to the provisions of section 69 of the Code of Civil Procedure, it is clear that Attorney José Benet lacked the legal capacity to take an appeal from the said judgment, whether he acted in the name of Avelino Martinez Mercado, deceased, or in the name of Manuel Martinez Mercado, who had not been substituted for his deceased brother by a judicial order, and it is equally manifest that the judgment appealed from is null and void on account of failure to comply with the section of the Code of Civil Procedure cited although Manuel Martinez Mercado could not secure a decree to tha't effect by means of the appeal. See the case of José B. Pérez v. Teresa Soto and José Gerardo Vélez, decided April 6, 1914.

Notwithstanding the foregoing, we are not inclined to sustain the claim of nullity set up by Agustín Hernandez Mena in bis petition.

In deciding tbe certiorari proceedings of Estefanía Espada against Domingo Sepulveda, Judge of the District Court of Ponce, on February 25 last we said:

“Except when so provided by statute, the writ of certiorari when invoked to correct the proceedings of an inferior tribunal is not á writ of right but should be issued only when a special reason therefor is shown to the court, and the court is vested with judicial discretion to grant or refuse the writ as justice may require in each case. This principle, set out in the foregoing terms in 6 Cyc., 748, is upheld in many decisions in Arkansas, California, Florida, Illinois, Louisiana, etc., and this Supreme Court of Porto Rico has applied it on many occasions, among others in the case-of Polo v. Domínguez, 15 P. R. R., 592; Torres v. Gill, 17 P. R. R., 38, and particularly in the case of Argüelles v. Rossy, District Judge, 19 P. R. R., 995.”

Iu tbe present case it occurs that tbe judgment of tbe Municipal Court of Mayagiiez of July 29, 1912, was rendered in violation of section 69 of tbe Code of Civil Procedure, it being plainly void by reason of tbe lack of a bearing of tbe defendant, Avelino Martinez Mercado, wbo bad died, or of bis succession; that tbe District Court of Mayagiiez acted in accordance with law in decreeing said nullity; that although Manuel Martinez Mercado bad not been a party to-tbe suit, as a brother of tbe defendant wbo bad died without ascendants or descendants, be might be a party interested in tbe judgment rendered, and that tbe petition for a writ of certiorari filed on May 1, or more than eight months after tbe nullity was decreed, comes too late.

Under tbe circumstances attending this case and applying tbe principle heretofore laid down, we are not inclined to grant tbe remedy applied for by Agustín Hernández Mena, but, on tbe contrary, in tbe exercise of our judicial discretion, we deny tbe same in tbe interest of justice.

Tbe writ of certiorari should be discharged and tbe case remanded to the District Court of Mayagiiez for such purposes as may be proper.

Petition dismissed and writ denied.

Justices "Wolf, del Toro and Aldrey concurred.

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