
    Abreu v. Valle.
    Appeal from the District Court of Aguadilla.
    No. 567.
    Decided January 3, 1911.
    Appeal — Trak script oe Becobd. — In case of appeal, where defendant fails to appear to answer tlie complaint and a judgment is entered by default, the summons of defendant, together with the proof of service thereof, should form a part of the record and be included in the transcript of the same. Failure to include the summons in the record results in the dismissal of the appeal.
    The facts are stated in the opinion.
    
      Mr. Arturo Reichard for appellant.
    The respondent did not appear.
    
      Mr. Jesús M. Bossy, fiscal, for The People.
   Mr. Chief Justice Hernández

delivered the opinion of the court.

On October 20, 1909, Sabas Abren y Sosa brought suit in the District Court of Aguadilla against her lawful husband, Roque Valle y Grómez, praying the court to decree the dissolution of the bonds of matrimony on the grounds set forth in the complaint.

On motion of complainant the clerk of the court entered on the record the default of the defendant to appear to answer the complaint; the trial took place in the absence of defendant, who failed to put in an appearance, and the court, upon due consideration of the facts alleged in the complaint and after hearing the evidence introduced by complainant, rendered a decision on April 19, 1910, dismissing the complaint with the costs against the complainant, who took the case to this Supreme Court on appeal.

The records filed in this appeal contain copies of the following papers: The complaint, a motion of complainant asking for a judgment by default, a record of this motion as entered by the clerk, the judgment rendered, the appeal taken from the same, and a statement of the case by the judge.

Appellant has failed to comply with the terms of section 299 of the Code of Civil Procedure, which provides that in an appeal from a final judgment the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement of the case upon which the appellant relies, the judgment roll, in case the complaint be not answered by defendant, constituting, under section 233 of the same code, the summons with the affidavit or proof of its service, the complaint with a memorandum endorsed thereon -to the effect that the default of the defendant in not answering was duly entered, and a copy of the Judgment.

The transcript of record does not contain the summons with the affidavit or proof of service thereof, a requisite which should have been complied with by an imperative precept of the law, this omission being covered by section 303 of said code, which provides that when an appellant fails to furnish the requisite papers the appeal will be dismissed, a provision of law which lias been previously enforced by this court on like grounds, in the case of Blasina Rondón v. Cárlos Gil (14 P. R., 570), decided on June 16, 1908.

By virtue of the reasons above stated, we adjudge that this appeal from the judgment rendered on April 19 of last year by the District Court of Agnadilla should be dismissed.

Dismissed.

Justices MacLeary and del Toro concurred.

Mr. Justice Wolf signed, stating his conformity with the dismissal of the appeal and giving a separate and concurrent opinion.

Mr. Justice Aldrey did not take part in the decision of this. case.

CON CURRENT OPINION OP

ASSOCIATE JUSTICE WOLF.

It seems to me that the main reason why this appeal should be dismissed is that it has not been shown that due notice of the appeal was given to defendant in the lower court.  