
    Rodríguez, Plaintiff and Appellant, v. Palacios, Municipal Judge, Defendant and Appellee.
    Appeal from the First District Court of San Juan in Certiorari Proceedings.
    No. 3199.
    Decided June 27, 1924.
    Appeal — Certiorari—Default—Discretion of Court. — On appeal from an order denying a petition for review by certiorari of an order of a municipal court opening the default of a defendant, Held: That considering the allegations of the petition, the district court abused its discretion.
    The facts are stated in the opinion.
    
      Messrs. E. and L. Campillo for the appellant.
    The appellee did not appear.
   Mr. Justice Audrey

delivered the opinion of the court.

This is an appeal from an order of the lower court denying the appellant’s petition for a writ of certiorari.

In the petition it was alleged that the petitioner brought an action of debt in Section 1 of the Municipal Court of San Juan against Julio Gómez; that the summons was served on the defendant by a private person; that the defendant read the complaint and then refused to receive it; that a default judgment was entered by the clerk and after the writ of execution had been issued the defendant moved the municipal court to open his default and set aside the judgment on the grounds that he had no knowledge of the action until he received notice that his property was about to be sold at public auction in execution of the judgment and that he never received a copy of the complaint or notice thereof in any manner; that with this motion he filed a demurrer and an answer to the complaint; that on the day set for the hearing on the motion the plaintiff opposed it and offered several depositions, copies of which were delivered to the defendant; that these depositions tend to show that demand was made upon the defendant for payment of the debt in a letter written to him by attorney Enrique Campillo; that copies of the complaint and of the summons were delivered to him; that later he refused to receive the complaint and it was left on the floor; that notwithstanding the fact that the defendant had denied having received the letters written to him by attorney Campillo, yet he had said to the plaintiff that he had received them but that he had nothing to settle with that attorney, admitting also that he had received a copy of the complaint hut thought it was not necessary to appear in court; that he asked the plaintiff for a reduction of the debt and the dissolution of the attachment; that the defendant presented no evidence to contradict that of the plaintiff, but in his brief stated under oath that he did not refuse maliciously to receive the documents delivered to him by a private person who was commissioned to summon him, but that as he had received a letter from attorney Enrique Campillo a few days before, he thought that the papers brought by that private person were á new demand made upon him by the attorney for the payment of his debt to the plaintiff, with whom he had already come to an agreement, and that notwithstanding all of these facts the municipal court sustained the. motion to open the default and set aside the judgment and admitted the pleadings filed by the defendant in order that the case might be decided on its merits.

The petition for the writ of certiorari was verified and in view of the averments therein contained we are of the opinion that the trial court abused its discretion in refusing to issue the writ; therefore, its order should be

Reversed.

Chief Justice Del Toro and Justices Hutchison and Franco Soto concurred.

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