
    Busigó, Respondent, v. Yordán et al., Defendants, Malaret, Appellant.
    Appeal from the District Court of Mayagüez.
    No. 957.
    Decided May 29, 1913.
    Costs — Attorney’s Pees — Objections—Deficiency oe Record — Presumption.— When the recovery of attorney’s tees as costs is objected to in the lower court on the sole ground that such fees are excessive, the objecting party and respondent cannot plead for the first time in the appellate court that the record does not show that the subject-matter exceeded $500 or that the party claiming costs obtained judgment for costs, disbursements and attorney’s fees, for the nature of the proceedings in the court below gives rise to the presumption that both of these questions were admitted by the parties.
    Id. — Objections to Cost BIill — Attorney Appearing Pro Se. — A district court lacks jurisdiction to consider and decide in a proceeding objecting to a cost bill whether an attorney appearing in his own behalf is entitled to recover his fees from the adverse party as said question should be decided in rendering the final judgment.
    Id. — Attorney’s Pees — Appeal.-—The amount of attorney’s fees claimed as costs cannot be determined on appeal when the lower court fixed no amount but only held thát an attorney is not entitled to fees when he appears in his own defense.
    The facts are stated in the opinion.
    
      Mr. Augusto Malaret appeared pro se.
    
    
      Mr. Herminio Diaz Navarro for Leonor Busigó.
   Mr. Chiep Justice Hernández

delivered the opinion of the court.

This is an‘-appeal taken from a decision of the District Court of Mayagiiez on June 24, 1913, dismissing in toto a hill of .costs and disbursements presented by Attorney'A. Mala-ret, who appeared in his own behalf-in a suit (case No-. 2739) brought in the said court by Leonor Busigó Pou- against Rosa Yorclán and others to obtain a decree.of ownership and nullity. Said bill of costs contains only items of fees of Attorney Malaret amounting to a total of $500.

The transcript of, the record filed in this court on appeal consists of the following documents: 1. The bill of costs referred to; 2. Motion objecting thereto; 3. Order of the court in. the terms indicated above; 4. Notice of appeal; and, 5.. Clerk’s certificate attesting said documents.

The plaintiff objects to the bill of costs not on the ground that the costs are not due, but because the amount thereof— $500 — is excessive, and the court in its decision appealed from denied the bill of costs on the ground that the law does not allow fees to an attorney appearing in a suit as his own rep: resentative.

In his, brief the plaintiff submits arguments tending to support his right to collect fees in his own .defense, and adds that the District Court of Mayagfiez went beyond the objections raised by the adverse party inasmuch as the latter did not claim that the costs were not due, but only that they Were excessive and asked only that they be reduced. Counsel for the plaintiff, besides arguing as to whether the decision appealed from was a proper one, alleges that it is not possible to ascertain from the record whether the appellants obtained, judgment for costs, disbursements, and attorney’s fees in their favor as against the adverse party, or whether the subject-matter of the complaint exceeded $500.

That allegation, which simply, relates to the deficiency of the record, is inadmissible. In view of the nature of the proceedings in the court below, which were limited to determining, whether or not Malaret’s fees-were excessive, it is to be presumed that both parties admitted that judgment had been rendered ordering the plaintiff to pay the fees of the attorney or attorneys representing the other side and that the subject-, matter exceeded $500. It was incumbent upon the objecting party to overthrow this presumption and to make the correT sponding additions to the record.

In regard to the question voluntarily raised by tlie court below to tbe effect tbat by law no attorney appearing in a suit in bis own defense is entitled to fees, we are of tbe opinion tbat sucb a question cannot be considered and decided in proceedings on objections to a bill of costs, disbursements and fees, because if one of tbe parties to a suit has tbe right to receive from tbe defeated party bis attorney’s fees as well as bis costs, tbat right should be expressly stated also in tbe judgment, as we said in deciding tbe case of Veve v. The Municipality of Fajardo, 18 P. R. R., 738. In deciding tbat case we held also tbat in objecting to a bill of costs, disbursements and attorney’s fees tbe right to collect tbe amounts included therein, when sucb right bas been expressly decreed in a judgment, cannot be disputed, but tbe objection should be limited to tbe extent thereof, either tbat tbe attorney’s fees are excessive or tbat there are excessive or unlawful items in tbe costs and disbursements.

Applying this doctrine to the present case, we must bold that tbe trial court lacked jurisdiction to decide whether an attorney is entitled to recover fees from tbe adverse party when appearing in bis own defense. Tbat question should have been decided in rendering tbe final judgment by allowing or denying sucb fees, and tbe judgment could have been appealed from either in part or in whole.

Neither can this' court decide now whether Attorney Mala-ret’s fees are excessive or not as there is not sufficient ground upon which to base an opinion. Tbe trial court did not exercise its discretion on this point, but held tbat tbe fees were unlawful, and as it lacked jurisdiction to consider this question in tbe proceedings on tbe objections to tbe costs, it committed manifest error, and therefore is required to consider tbe importance of tbe labor and professional skill employed by Attorney Malaret in tbe case in order to arrive at a determination of tbe amount which should be allowed him as attorney’s fees. See The Fajardo Development Company v. Succession of Morfi, 17 P. R. R., 1077.

For the foregoing reasons the decision appealed from should be reversed and the lower court should proceed to pass upon the objections to the fees of Attorney Malaret after the due formalities of law have been complied with.

Reversed and remanded to the lower court-with instructions to proceed in accordance with the principles laid down in this opinion.

Justices MacLeary, Wolf, del Toro and Aldrey concurred.  