
    United States Casualty Company, Plaintiff and Appellee, v. Juan Méndez-Pérez, Defendant and Appellant.
    No. 4388.
    Argued December 5, 1927.
    Decided December 24, 1927.
    
      Salvador Suau for the appellant. Oscar Souiffront for the appellee.
   Mr. Chief Justice Del Toro

delivered tbe opinion of tbe court.

Tbe defendant moved for a change of venue to tbe District Court of Aguadilla, tbe place of bis residence. Tbe! District Court of Mayagüez denied tbe motion on August 22, 1927. Tbe defendant appealed and tbe transcript of tbe record was filed in the office of tbe Secretary of this Supreme Court on the 28th of September. Both parties submitted briefs and at this state of tbe proceedings tbe appellee moved for dismissal of tbe appeal because tbe record does not show the date of the filing of the notice of appeal and therefore the jurisdiction of the Supreme Court is not apparent from the record, and as the defendant answered the complaint after the appeal was taken, he submitted voluntarily to the jurisdiction of the District Court of Mayagüez and therefore his appeal is academic.

The appellant opposed the motion and in our opinion he is right.

As regards the first ground for dismissal it will be sufficient to say that it appears from the record that the notice of appeal transcribed therein is dated August 31, 1927. It contains also an affidavit showing that similar notice was mailed to the attorney for the adverse party on August 31 1927, and as there was included in the opposition a certificate issued by the clerk of the District Court of Mayagüez to the effect that the notice of appeal had been filed on September 3, 1927, the jurisdiction of this Supreme Court is clear. The ten days allowed by law for taking an appeal had not expired.

The second ground is sufficiently answered by section 298 of the Code of Civil Procedure and by the holdings of this Supreme Court in the cases of Hernández et al. v. Cuevas Zequeira, 24 P.R.R. 759, Santalis v. El Zenit, 28 P.R.R. 649, Successors of Abarca v. Nones et al., 30 P.R.R. 810, and others. As an appeal from an order granting or refusing a change of venue does not stay the proceedings in the court below, the filing by the defendant of an answer in that court does not mean a submission to its jurisdiction. Everything is done subject to any decision rendered on appeal.

The motion to dismiss is overruled.  