
    Noriega & Alvarez, Plaintiffs and Appellants, v. New York & Porto Rico Steamship Co., Defendant and Appellee.
    Appeal from the District Court of Ponce in an Action to Recover Personal Property. — Memorandum of Costs.— Motion for Dismissal.
    No. 3248.
    Decided July 11, 1924.
    Appeal — Pleading—Motion eor Dismissal — Statement oe Case — Transcript oe, Record. — An appellee who moves for dismissal of the appeal because, a statement of the ease not being necessary, the transcript should have been filed within thirty days after the filing of the notice of appeal, should make his motion before the record is filed in the Supreme Court, and, besides, this court should be put in' a position to decide whether or not a statement of the case was necessary.
    The facts are stated in the opinion.
    
      
      Messrs. Martines Nadal, Termes ■& Colón and C. del Toro Fernández for the appellants.
    
      Messrs. O. B. Fraser and B. Castro Fernández for the appellee.
   MR. Justice Audrey

delivered the opinion of the court.

The record for the appeal in this case was filed on March 26, 1924, and contains the judgment of the trial court imposing the costs on the plaintiff, the judgment of this court affirming it, the defendant’s memorandum of costs, the objections thereto by the plaintiff, the agreement of the parties to- submit that question to the court on briefs, the ruling of the court, the appeal taken on December 28, 1923, find notice of the appeal to the defendant. Then follows a so-called statement of the case approved by the lower court and containing only a brief review of the said facts, there being no evidence.

The appellee has moved for dismissal of the appeal for the reason that as there is no statement of the case the transcript should have' been filed within 30 days following the taking of the appeal. In this case there is no statement of the case because no evidence was examined, and the record on appeal should have been filed within the time stated by the appellee; but as it made the motion for dismissal after the record had been filed in this court, although out of time, in accordance with Rule 58 of this court and the case of Chiqués v. Diez, 26 P.R.R. 190, the motion must be overruled. If the appellee sought a dismissal of the appeal for the reason alleged, it should have moved for it before the record was filed in this court on appeal, placing us in a position to decide whether a statement of the case wás proper, as we said in González v. Workmen’s Relief Commission, ante, page 134.

The motion for dismissal is

Overruled.

Chief Justice Del Toro and Justices Hutchison and Franco Soto concurred.

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