
    Tibot v. Ocasio.
    Appeal from the District Court of San Juan.
    No. 11.
    Decided March 14, 1904.
    Appeal in Cassation. — The act of March 12, 1903, converting the court of cassation into a court of appeals, did not give effectiveness to the provisions of the old Law of Civil Procedure, which grants the right of appeal, but to those articles which establish the procedure therein, repealing the articles which relate to the hearing and determination of the appeal in cassation.
    Id. — An appeal lies only in those cases in which an appeal in cassation would formerly lie.
    Id. — An appeal does not lie from orders made in proceedings for the execution of judgments, unless substantial points are decided which are not controverted in the action nor decided in the judgment, or which are contradictory thereto.
    STATEMENT OE THE CASE.
    This was an action of unlawful detainer instituted in the District Court of San Juan by José Ramón Tibot, as testamentary executor of José Antonio Puentes, against Andrés and Juan Ocasio, and incidental issue regarding nullity of proceedings, raised by the defendants, which latter is pending before us on appeal taken by said defendants from a decision dismissing the same, appellants being represented and defended in this Supreme Court by Prank Antonsanti, Esq., while the respondent failed to appear.
    
      The aforesaid decision, being literally copied, reads as follows:
    “Judgment. — In the city of San Juan, Porto Rico, November 23, 1903. A hearing was had of the incidental issue regarding nullity of proceedings, raised by Andrés and Juan Ocasio, represented at first by Attorney José C. Rodríguez Cebollero, and afterwards by Attorney Prank Antonsanti, against José Ramón Tibot, represented by Attorney Cruz Castro.
    “On May 9, 1902, José Ramón Tibot brought an action of unlawful detainer in the District Court of San Juan against Andrés and Juan Ocasio, praying that they be ordered to vacate a farm situated in Bayamón. Said action being admitted, judgment was in due course rendered against defendants, who were given twenty days to vacate the property, under warning of ejectment therefrom in case of failure to do so within -the specified term. They were further adjudged to pay the costs of the proceedings.
    “Said judgment being acquiesced in and made final, it was so declared in an order of June 3, ordering the execution thereof, and the municipal judge of Bayamón was commissioned to notify the defendants to vacate the farm within twenty days. This was done on the 12th of the same month, but the defendants having failed to comply with the order, on the 7th of July, at the instance of the plaintiff, a writ of ejectment was issued by the court on the following day.
    “Upon receipt of said writ the municipal judge of Bayamón commissioned the bailiff, Fidel Cepero, accompanied by the clerk of said court, to effect the ejectment of Andrés and Juan Ocasio, which was done on July 13. During the ejectment proceedings, at the request of plaintiff, through his representative, Ramón Nieves, two cows belonging to Juan Ocasio were held in deposit with him, other animals owned by Andrés Osasio, being deposited with Manuel Be-cerril as security for the costs.
    “On August 18th counsel for the plaintiff presented a sworn statement of his fees in the ease, amounting to seventy-five dollars, and at his request the municipal judge of Bayamón was instructed on the 20th to demand from Andrés Ocasio the immediate payment of said sum, together with the costs incurred in said court by reason of the ejectment, or otherwise to proceed to the sale of the property on deposit, in the manner provided by article 1601 of the Law of Civil Procedure, for the purpose of meeting, with the proceeds of said sale, the above-mentioned liabilities.
    “Said order was issued on September 4, and on the 29th of the same month, counsel for the defendant, José C. Rodríguez Cebo-llero raised an incidental issue for the annulment of all the proceedings had for the execution of the judgment rendered in the action of unlawful detainer, basing the same apon the following facts: 1. That the municipal judge of Bayamón having received no commission other than to effect the ejectment of the defendants, he had, by seizing property belonging to the latter for the recovery of' costs, gone beyond the limits of his powers; 2. That said seizure had not been made at the request of a lawful party but of a certain Ramón Nieves, who claimed to be plaintiff’s representative by verbal appointment, said representation not having been proven; 3. That the ejectment was not effected by the municipal judge who had been commissioned for the purpose, but by the bailiff and clerk, delegated by'the judge, who had no power to confer such a mission; and 4. That the statement of his fees presented by Attorney Cruz Castro, not having in reality been sworn to, the court could not legally order the payment thereof, nor was the municipal court of Bayamón authorized to tax the costs of proceedings had before the district court. He further alleged, as pertinent to the case, the following legal'provisions: Judicial Order No. 134, of August 31, 1899, wherein it is provided that parties litigant shall be represented in the district courts by lawyers, and in the municipal courts by a duly authorized resident of the locality; articles 290, 292, 298 and 298 of the Law of Civil Procedure referring to persons commissioned to present and require compliance with letters mandatory and other letters, and to delegates whom the judges so commissioned may appoint to perform such acts as they are unable personally to execute.
    “The complaint being admitted, six days notice thereof was served upon José Ramón Tibot y Puentes, who in his answer contradicted the facts and legal grounds alleged by the defendants, and cited in support of his claim section 63 of General Orders No. 118, and articles 1593, 1599 and 1601 of the Law of Civil Procedure.
    “The period of ten ordinary days having been fixed for the taking of evidence on the incidental issue, none was offered by the parties, Rodríguez Cebollero having withdrawn his case, and upon the expiration of said period, the court on the 16th of November ordered the record to be taken up for the purpose of delivering judgment, both parties being summoned to appear; and Attorney Antonsanti having entered an appearance as counsel for the Ocasios, in place of Mr. Rodríguez Cebollero, with his citation and that of Attorney José R. Tibot, the record was taken up.
    “In the conduct of this hearing the rules of procedure have been observed.
    “Presiding Judge Juan Morera Martínez prepared the opinion of the court.
    “Without the necessity of a request being made by the plaintiff, upon executing a writ of ejectment, a sufficient quantity of the saleable property found should be retained on deposit, as was done in this case, to cover the costs of the trial and subsequent proceedings chargeable to the defendants, for which reason the municipal court of Bayamón did not overstep the bounds of its authority in executing the writ of ejectment issued against, defendants.
    “The intervention of Ramón Nieves in said retention, as the representative of the plaintiff, is immaterial, inasmuch as without it and by virtue of the law, the person commissioned to effect the ejectment was bound to make such retention for the payment of the costs of the trial and subsequent proceedings; and according to article 290 of the Law of Civil Procedure, the persons charged by the parties with the duty of presenting and looking after the execution of letters rogatory and other letters are not obliged to exhibit any power of attorney, nor can the judge to whom the request is addressed or who is commissioned by another require it of them.
    “There exists no provision ordering the judge of a municipal court, who has been commissioned to effect the ejectment of one or more tenants, to attend personally to the proceedings in connection ^herewith, said ejectment being legally executed when carried out by the bailiff and the clerk by order of the judge, these officials being the ones upon whom properly devolves the performance of such duties, which are analogous to attachments and executions, according to articles 1402 and 1440 of the Law of Civil Procedure.
    “According to article 422 of aforesaid Law, attorneys themselves are authorized to fix their fees in a detailed and signed statement, after the judgment or order in which the costs were imposed becomes final, and if the parties against whom the costs have been adjudged should consider that the fees charged by Attorney Cruz Castro are excessive, their right is confined to contesting them under the procedure prescribed by article 426 of the same law, without their being thereby authorized to demand the annulment of the other proceedings had for the execution of the judgment rendered in the matter.
    “In view of the legal provisions applicable to the case under consideration, we adjudge that we should declare and do declare that the incidental issue raised on behalf of Andrés and Juan Ocasio, for the annulment of the proceedings had at this trial from folio 43 to folio 53, does not lie, and impose upon them the costs.
    “Thus, by this our judgment, finally rendered, do we pronounce, order and sign. Juan Morera Martínez, Frank H. Richmond, José Tous Soto.”
    From this decision counsel for Andrés and Jnan Ocasio filed a notice of appeal, which was allowed, and the record having been forwarded to this Supreme Court, after citation of the parties, the appellants being the only ones to appear, the appeal was conducted in conformity with the procedure prescribed by the law. None of the parties appeared at the hearing.
    
      Mr. Antonsanti, for appellants.
   Mr. Justice Hernández,

after making the above statement of facts, rendered the opinion of the court.

The act of March 12, 1903, establishing the court of cas-sation as a court of appeals, did not give effectiveness to the provisions of the Law of Civil Procedure which allows appeals, hut only to those which prescribe the procedure for the former suits of greater import, suppressing the proceedings known by the name of “apuntamiento,” as provided in section 3 thereof, while under section 2 it expressly repeals all proceedings established for appeals in cassation.

Said act of March 12, 1903, in prescribing, under section 4, that in all cases where reference is made in the Law of Civil Procedure to appeals in cassation, the same shall be construed as meaning ordinary appeals, clearly showed the intention of the Legislature to be that appeals to the .Supreme Court shall now be allowed from decisions which were formerly the subject of appeals in cassation, pursuant to the Law of Civil Procedure.

Said Law provides, under article 1693, that no appeal in cassation shall lie from rulings in proceedings for the execution of judgments, unless substantial points are decided which are not controverted in the action nor decided in the judgment, or which are contradictory thereto; and from the doctrine set forth it follows that the same rule and exceptions should be considered in determining whether the appeal now submitted to the decision of this court is tenable or not.

The decision appealed from does not1 pass upon any substantial point of law, for the incidental issue on which said decision was rendered has reference to the annulment of proceedings based upon a violation of rules of procedure; nor does it order anything conflicting with the executory judgment, but on the contrary, it makes for the prompt execution of the judgment rendered in the action of unlawful detainer which gave rise to said incidental issue.

For the foregoing reasons the appeal taken is untenable, and cannot therefore be considered.

"We adjudge that we should declare and do declare that the appeal taken by Juan and Andrés Ocasio from the judgment of the District Court of San Juan, rendered November 23, 1903, whereby the incidental issue for annulment of proceedings was dismissed, does not lie, and impose costs upon appellants.

Let the record be returned to said court, with a certified copy of this decision, for the proper action.

Chief Justice Quiñones and Justices Figueras, Sulz-bacher and MacLeary concurred.  