
    Enrique Alcaraz, Plaintiff and Appellee, v. Pedro D’Azizi, Defendant and Appellant.
    No. 4502.
    Argued March 5, 1928.
    Decided March 8, 1928.
    
      A. B. de Jesús for tbe appellant. Ángel A. Vázquez for tlie appellee.
   Me. Justice Wole

delivered the opinion of the court.

This is an appeal to determine a matter of costs. A motion to dismiss is made alleging that the appeal is frivolous because the appellant has failed to incorporate the evidence and hence this court, is in no position to judge the merits of the appeal.

Formerly we held that the failure to incorporate the evidence was no ground of dismissal as a question of law or fact might arise f|rom the pleadiings.. A review of a matter of costs conceivably might present a different situation.

We have also decided in a number of cases that a matter of costs, to he judged properly, might require the transmission of the evidence in order that this court might he put in. the same situation as the court below.

The appellant in response to the motion to dismiss maintained that the situation could be realized from an inspection of the opposition to the memorandum of costs, wherein the nature of the pleadings, the extent of the trial and other matters were set forth. We are not convinced that the incorporation of the evidence was indispensable and therefore the appeal falls within the principle first enunciated that •where the pleadings are before ns a motion to dismiss ordinarily does not prevail.

The motion to dismiss will he overruled.  