
    Huertas v. Marrero.
    Appeal from the District Court of San Juan.
    
      No 35.
    
    Decided November 24, 1903.
    Bivorce. — Abandonment.—The abandonment of the wife by the husband or of the husband by the wife for a longer period of time than one year is sufficient ground for divorce.
    Id. — Evidence oe Abandonment. — The admission by the defendant of the facts alleged by the plaintiff, including the charge of abandonment, and indirectly confirmed by the testimony of uneontradicted witnesses, constitutes sufficient evidence of the abandonment mentioned by the law as ground for divorce.
    STATEMENT OP THE CASE.
    This is an action for divorce, prosecuted in the District Court of San Juan by Ceferino Huertas, as plaintiff, represented by his counsel, Santiago B. Palmer, against Ana Ma-rrero, as defendant, represented by her counsel, José C. Rodríguez Cebollero, which case is pending before us on appeal taken by counsel for plaintiff from the judgment rendered by the said District Court, which literally reads as follows:
    “In the City of San Juan, Porto Eico, March 21, 1903. An oral and public hearing having been had in the action for divorce, prosecuted by Santiago B. Palmer, Esq., on behalf of Ceferino Huertas, as plaintiff, against the latter’s wife, Ana Marrero, represented by her counsel, Rodriguez Cebollero, no further general facts appearing in regard to the parties.
    “In August of 1902, Attorney Palmer, representing Ceferino Huertasr brought an ordinary action for abandonment and ill-treatment against Ana Marrero, the plaintiff’s wife, alleging the following facts: That plaintiff had many years ago contracted marriage with defendant, and in their home the most absolute harmony had prevailed up to 1897, when, as a result of his wife’s ungovernable temper, serious quarrels began to occur; that during the latter part of said year the quarrels continued to occur, he being abused and ill-treated by his wife; that about January, 1898, the defendant abandoned her home and did not return despite her husband’s repeated efforts to bring her back, for which reason he was compelled to institute proceedings to secure a conciliation, at which the defendant had acquiesced in plaintiff’s demand, he praying that after complying with the legal formalities his complaint be sustained. His complaint was accompanied by a certificate of the marriage entry, and another certificate to the. effect that the proceedings to .secure a conciliation had been held and an agreement reached between the parties.
    “The complaint being admitted and notice thereof having been served upon the defendant, through the municipal judge of Toa-Alta, and upon the Fiscal, answer thereto was filed by Rodríguez Cebollero, Esq., on behalf of the defendant, who admitted all the facts alleged in the complaint and acquiesced in all the demands of the plaintiff.
    “The parties being duly summoned to appear for the purpose of proposing such evidence as they intended to make use of, said proceedings took place on December 18 of the previous year, at which the only one to appear was counsel" for plaintiff, who proposed the presentation of the testimony of witnesses, which by an order made on the same day was declared pertinent and ordered to be heard, the adverse party being cited.
    
      “At the hearing which took place to-day the following witnesses testified under oath: Manuel Sanfeliz, who stated that the defendant lives in Corozal, and her husband, the plaintiff, in Toa-Baja, and that he supposes her needs were attended to by Francisco Moreno, with whom she lives; José de la Roca Vázquez, who testified that the defendant had been for three years living with Francisco Moreno, by whom she has had several children; and Gaspar Berio testified that he had been commissioned by the plaintiff to see his wife who, at first, lived with her parents, and afterwards, maritally, with Moreno, by whom she has had several children, and that she had refused to return to her husband. No other witnesses testified.
    “When the evidence was all in Attorney Palmer made such allegations in favor of his client as by him were deemed pertinent, and the court, by a unanimous vote, dismissed the complaint, with costs against the plaintiff.
    “The rules of procedure have been observed in the conduct of this trial. Presiding Judge Juan Morera Martínez prepared the opinion of the court.
    “Abandonment and ill-treatment on the part of the wife, having been urged as causes for the divorce, the evidence proposed and introduced at the hearing should have been confined to these points, whereas the testimony of the witnesses has tended only and wholly to prove adultery, which certainly was not the ground on which the plaintiff based his complaint, and even adultery has not been duly proven. •
    “ In view of the principle justa alegata et probata, which is found in the Law of Civil Procedure now in force, in order to obtain a favorable judgment it is necessary that the evidence introduced at the request of the parties shall sustain the allegations contained in the complaint, for only in this manner can such judgment be .consistent with the complaint and other claims in due time set up, which consistence should have reference not only to persons, cases and actions that are the object of the suit, but also to causes.
    “Moreover, the burden of proof lies upon the plaintiff, and adore non probante, reus absolvitur.
    
    “The litigant who loses his case on all points shall be adjudged to pay the costs.
    “In view of article 359, and others, of the Law of Civil Procedure, as also General Order No. 118, series of 1899, we adjudge that we should dismiss the complaint herein, with costs against the plaintiff.
    “Thus by this our decision, finally adjudging, do we pronunce, command .and sign — Juan Morera Martínez — Frank H. Richmond — José Tous Soto'.”
    
      From this decision counsel for Ceferino Huertas, the plaintiff, took an appeal which was allowed en ambos efectos, namely, with the effect of staying the proceedings in the trial court and of the review of the case on appeal, and the record having been forwarded to this Supreme Court, and the parties being cited, the apellant appeared, and the proper procedure was followed, and a day being set for the hearing the same was duly had, the representative of the office of the Attorney General and counsel for apellant, being present.
    
      Mr. Juan R. Ramos, for appellant.
    
      Mr. del Toro, Fiscal of the Supreme Court.
    The respondent did not appear.
   Mr. Chief Justice Quiñones,

after making the above statement of facts, delivered the opinion of the court as follows:

The findings of fact of the judgment appealed from are accepted.

The abandonment of the wife by the husband or of the husband by the wife, for a longer period of time than one year, is one of the grounds for divorce, according to article 164 of the new Civil Code.

The explicit and conclusive statements made by the defendant, Ana Marrero, in the proceedings to secure a conciliation with her husband, Ceferino Huertas, regarding the truth of the facts alleged by the latter as grounds for the divorce suit, together with the testimony of the three witnesses who have testified in this case, and which indirectly confirm said facts, constitute sufficient evidence of the abandonment of the husband, Ceferino Huertas, by his wife, Ana Marrero, for a longer period of time than is required by the new Civil Code, and therefore the divorce should be granted, this declaration not necessarily implying the decision of other issues, not duly proposed and discussed herein.

In view of the legal provisions cited and others of general application, we adjudge that we should reverse and do' reverse the judgment appealed from, and sustain the action for divorce instituted by Ceferino Huertas against his wife, Ana Marrero, and accordingly, the marriage bond hitherto existing between the parties is hereby dissolved, with all the proper legal effects; the costs in the trial court to he taxed against the defendant, Ana Marrero, and the costs of this appeal being left without special imposition.

Justices Hernández, Sulzbacher and MacLeary, concurred.

Mr. Justice Figueras did not sit at the hearing of this case-  