
    Benedicto, Plaintiff and Appellee, v. Brac, Defendant and Appellant.
    Appeal from the District Court of San Juan, Section 1, in an Action to Recover Fees.’
    Motion by the Appellee for Dismissal of the Appeal.
    No. 1549.
    Decided November 10, 1916.
    Appeal — Transcript op Record — Answer.—When the appellant files the transcript of the record after having been notified of a motion by the appellee for dismissal of the appeal on the ground that the transcript had not been filed in time, such filing of the transcript cannot be considered as an answer to said motion, according to the letter of rule 58 of the Supreme Court.
    The facts are stated in the opinion.
    
      Mr. 'Enrique Rincón for the appellant.
    The appellee appeared pro se.
    
   Mr. Justice del Toro

delivered the opinion of the court.

The judgment appealed from in this case was rendered on May 31, 1915, and the appeal was taken on June 29 of the same year. The appellant was granted several extensions of time by the district court in which to prepare his statement of the case. The last extension expired on August 18, 1916, and the appellant had not presented the statement of the case.

This being the status of the case, on August 22, 1916, the appellee filed a motion in this court, supported by documentary evidence, for dismissal of the appeal because the transcript of the record had not been filed within the time allowed. On the same day the appellee served notice of his motion on the attorney for the appellant. At 7 p. m. of the same day the appellant filed a certified transcript of the record, consisting of the complaint, the answer, the opinion of the court, the judgment and the notice of appeal. No statement of the case was included.

The appellant admits that he filed the transcript of the record after the expiration of the time allowed by law and by the rules of this court, but relies on rule 58, which reads as follows:

“If the transcript of the record or the brief made by appellants be not filed within the time prescribed, the appeal may be dismissed, on motion, after notice given. If the transcript, though not filed within the time prescribed, be on file at the time such notice is given, this fact shall be sufficient answer to the motion. ” 17 P. R. R. LXXYI.

As we have said, the motion for dismissal was served on the appellant on August 22, last, and on the same day, hut at 7 p. m., the appellant filed the transcript; therefore the transcript was filed after he had notice of the motion, and consequently bis answer cannot be considered sufficient, according to the wording of the rule which he himself relies on. See Parker v. Oller, 21 P. R. R. 426, and Díaz v. Vélez et al., 16 P. R. R. 809.

At the hearing on the motion for dismissal the appellant did not set up, either orally or by brief, any explanation of his laches; therefore he has not furnished this court with any data which would enable it to exercise in his fayor the discretion vested in it in matters of this kind. See Gandía v. Pizá Bros., Ltd., 17 P. R. R. 320.

The appeal should be

Dismissed-.

Chief Justice Hernández and Justices Wolf, Aldrey and Hutchison concurred.  