
    Zaragoza et al. v. López.
    Appear from the District Court of Mayagiiez.
    MotioN to dismiss the appeal.
    No. 642.
    Decided December 24, 1910.
    Appeal — Dismissal.—Before the Supreme Court will dismiss an appeal on the ground that it was taken by an attorney who had never appeared as the attorney of record, the papers submitted or the affidavit accompanying the motion must make such an allegation a certainty.
    Id. — Appeal prom Judgment op Municipal Court — Notice op Appeal. — According to the provisions of sections 296 and 324 of the Code of Civil Procedure, the notice of appeal must be served upon the attorney and not upon the party. This principle is not applicable to an appeal taken from the judgment of a municipal court.
    The facts are stated iu the opinion.
    
      Mr. Miguel Guerra for appellants.
    
      
      Mr. Felipe Gasalduc for respondent.
   MR. Justice Wole

delivered- the opinion of the court.

The appellee moved to dismiss this appeal on two grounds: First, although the record showed that Pascasio Fajardo was the attorney of record in the District Court of Mayagüez, the appeal was taken and perfected under the authority of the attorney, Miguel Guerra, and that such record does not state that the said Guerra was an attorney of the appellant. The motion, however, is not sworn to and we have no legal means of knowing whether or not Mr. Guerra entered his appearance in the District Court of Mayagüez. On appeal, only certain papers are required to be sent up with the record, and the presentation of these papers in this court does not exclude the possibility that the attorney who takes, the appeal may have been originally one of the attorneys of record or may have duly entered his appearance or have appeared in the trial court in some or all of the proceedings preliminary to the appeal. Before we can dismiss an appeal on the ground that it was taken by an attorney who had never been made of record, the papers submitted to us or an affidavit accompanying the motion must make such an allegation a certainty.

The other ground of the motion is that this appeal was notified to the defendant appellee and not to his attorney, and we are cited to our decision in the case of American R. R. Co. of P. R. v. The Judge of the Municipal Court of Ponce (16 P. R. Rep., 227), decided on April 4,1910. In that case we decided that the appeal was properly entertained because it was taken not from a judgment of a district court, but from the judgment of a municipal court. This court, however, clearly held, conceding the proposition now raised by the ap-pellee, that the provision of law requiring notice to be .made upon the attorney did not apply to an appeal from a municipal court. This court reviewed the authorities in the case cited and came to the conclusion that by reason of the provisions of sections 296 and 324 of the Code of Civil Procedure, as well as by the jurisprudence of the Supreme Court of California, a notice of appeal must be made to the attorney.

The motion must be granted and the appeal dismissed.

Dismissed.

Chief Justice Hernandez and Justices MacLeary and del Toro concurred.  