
    Successors of José Martínez, Plaintiffs and Respondents, v. Tomás Dávila & Co., Defendants and Appellants.
    Appeal from an Order of the District Court of San Juan, Section 2, granting a new trial in an action of debt.
    No. 1137.
    Decided May 6, 1914.
    Appeal — New Trial — Statement oe Case — Frivolous Appeal. — The fact that the transcript of the record in an appeal from an. order granting a new trial does not contain a statement of the case showing the affidavits and questions discussed before the court at the hearing on the motion for a new trial, is not of itself sufficient for the dismissal of an appeal nor to characterize it as frivolous, especially when the insufficiency of the motion for a new trial has been alleged.
    The facts are stated in the opinion.
    
      Mr. Cayetano Coll y Cuchi for the appellants.
    
      Messrs. Bosch & Boto for the respondents.
   Me. Justice Wolf

delivered the opinion of the court.

Prom the record in this case we gather that at a trial in the District Court of San Juan, Section 2, the complainants offered certain proof of a debt to wbicb the defendants objected on tbe ground tbat tbe books of the merchants would be the best proof of such debt. Tbe court overruled the objection, but apparently dismissed the complaint subsequently for lack of such proof. The complainants moved for a new trial on the ground of accident or surprise which ordinary prudence could not guard against. The motion recites that such accident or surprise would appear in the affidavits presented in support of the motion. The court, after hearing the motion, sustained the same and ordered a new trial, and from this order the defendants appealed.

The respondents have moved to dismiss the appeal on two grounds, namely, that the record is incomplete and that the appeal is frivolous. The attack on the records is based upon the fact that the appellants have filed no statement of the case wherein would be shown the exact affidavits and matters before the court at the time of the hearing of the motion for a new trial. The secretary of the district court certified the transcript stating that the papers preceding his certificate were all the pleadings, orders, and documents used in the motion for a new trial. The respondents allege that this certificate is insufficient under the Eules of this court and the jurisprudence of California.

On appeals from judgments in the earlier days of our practice under the present Code of Civil Procedure, motions were frequently made to dismiss appeals for lack of a bill of exceptions or statement of the ease-, but we invariably ruled that questions might arise from an inspection of the pleadings, on which the appellant had a right to be heard. Similarly, there is here presented a question of the sufficiency of the motion for a new trial; in other words, the appellants raise the question as to whether the contents of the motion showed accident or surprise at the trial as these matters are known to the law. It may be, whether the appellants are right or not, that the court had discretion to grant a new trial, but the question of whether the ground of the motion was sufficient and the question, of the discretion of the court are each debatable matters. We think that the appellants have a right to be heard on the character of the motion itself and we are not entirely satisfied that the certificate of the secretary does not show exactly what matters the court had before it on the argument of the motion. These and other questions of practice and procedure are suggested to our minds and while it may be that we cannot take the affidavits into consideration, yet we cannot dismiss the appeal without entering into the sufficiency of the motion standing by itself. It follows, also, that the appeal is not frivolous, and the motion to dismiss the same must be overruled.

Motion overruled.

Justices del Toro and Aldrey concurred.

Mr. OMef Justice Hernández toot no part in this decision.  