
    Empresa Teatral Ponceña et al., Plaintiffs and Appellants, v. Municipality of Ponce et al., Defendants and Appellees.
    Appeal from the District Court of Ponce in Be a Memorandum of Costs.
    No. 2595.
    Decided May 19, 1922.
    Costs. — Although a court may have jurisdiction of an action and of the matter of the costs allowed therein, if the memorandum of costs is filed before the time fixed by law the court should not consider it and an order striking it out as premature is correct.
    The facts are stated in the opinion.
    
      Mr. C. Brunet for the appellants.
    
      Mr. D. Sepúlveda for the appellees.
   Mr. Chief Justice del Toro

delivered the opinion of the court.

The Empresa Teatral Ponceña filed a petition for a writ' of certiorari in the District Court of Ponce praying for the annulment of a certain ordinance of the municipality of Ponce imposing an excise tax on all tickets sold for admission to public shows or entertainments. The respondent municipality appeared and answered. The case was heard and the court gave judgment for the petitioner.

On September 24, 1921, the petitioner presented a memorandum of costs amounting to $407 and consisting of the following items: Clerk’s fees, $4; certificates attached to the record, $3; attorney’s fees, $400.

The respondent opposed the memorandum of costs on the grounds that the court was without jurisdiction to approve it because it had been filed prior to the time fixed by law; that the amount in controversy was neither alleged or proved; that the amount involved did not exceed five hundred dollars, and that in any event the attorney fees were excessive.

The court took the matter under consideration and decided it as follows:

"One of tlxe grounds of tbe opposition of tbe attorney for tbe respondent is that tbe court is without jurisdiction of tbe said memorandum of costs because it was presented unseasonably.
“In accordance witli that allegation of tbe respondent tbe court has examined tbe record in this case and has found that tbe judgment was rendered on September 9, 1921, and that tbe petitioner filed tbe memorandum of costs in tbe clerk’s office of this court on September 24, 1921, when tbe judgment bad not become final because tbe thirty days within which an appeal could be taken therefrom bad not expired. Considering section 339 {sic) of Act No. 15 approved by tbe Legislative Assembly on November 19, 1917, relative to costs, tbe court is of the opinion that tbe said memorandum was filed prior to tbe time fixed by the law and rules that it should be stricken out for tbe reasons stated.
“Legal authority: Sellick v. De Carlow, 95 Cal. 644.”

From that ruling of the court the present appeal was taken and the only error assigned is “that committed by the court in striking out the memorandum of costs.”

The appellant maintains that although it is true that the memorandum was premature, the court was not without jurisdiction; that the question of jurisdiction having been raised, the court should have decided that and nothing more, and that if the respondent had moved only to strike out the memorandum as premature and the court had sustained the motion, the petitioner could have presented it again at the proper time.

The judgment was rendered on September 9. In accordance with the law it would become final thirty days thereafter and the memorandum of costs should have been presented within the next ten days. This the appellant admits. The memorandum was filed on September 24 and the written opposition thereto, dated September 27, after fixing the days on which the judgment was rendered and the memorandum was filed, states that “especially for this reason we allege that the court is without jurisdiction of the said memorandum of costs because it was filed out of time.”

The petitioner had, therefore, ample opportunity to correct the error, inasmuch as the question was openly and clearly raised wlien the judgment was not yet final, but as it preferred to proceed with the memorandum of costs filed, it must suffer the consequences of its own acts.

It is true that the court had jurisdiction of the case and of the matter of the costs allowed by it therein, but the memorandum was presented and contested at a time when the court was not empowered to consider it and its order striking out the memorandum was the logical and proper action and came necessarily within the scope of the question raised by the respondent.

The California case cited by the court, Sellick v. De Carlow, 95 Cal. 644, is stronger that the case at bar, for in that ease the memorandum of costs was filed before the judgment had been docketed, but the principle involved is similar.

The order appealed from must be

Affirmed.

Justices Wolf, Aldrey and Hutchison concurred.

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