
    Ríos v. Ríos et al.
    Appeal from the District Court of Humacao.
    No. 376.
    Decided May 21, 1909.
    Appeal — Dismissal—Proof of Service of Notice of Appeal. — According to section 75 of the Rules of this court, in any case where service of .papers or motions is made on the adverse party, the affidavit of the person serving the same shall constitute proof of said service, and as the affidavit of service of notice of appeal appears in the record, said appeal should not be dismissed.
    
      The facts are stated in the decision.
    
      Mr. Días Navarro for mover.
    
      Mr. Vías Ochoteco for adverse party.
   Counsel for Petronila Patricia Ríos de Noya and José Toro Rios filed a motion in this court to dismiss the appeal taken by María Rios, the widow of Rubio, from a judgment of the District Court of Humacao, alleging among other things, that this Supreme Court lacked jurisdiction to hear and determine the appeal because it did not appear that the adverse party had been notified, as required by section 296 of the Code of Civil Procedure.

María Rios, the widow of Rubio, opposed the foregoing-motion in writing and attached the notice of appeal with the notification to the attorney for the adverse party, establishing this fact by an affidavit signed by Gregorio Dimas, who was the person who made the service.

The hearing on the motion having been had on April 5 last both parties made their respective arguments.

On May 3 this motion was again heard by the court in banc.

According to the last paragraph of section 75 of the Rules of this court, in any case where service of papers or motions is made on the adverse party, proof of such service when not otherwise provided by law, shall be made by the affidavit of the person serving the same, and as in this case it is not otherwise provided by law, we must consider the fact of the service of notice upon the attorney for the opposite party to have been established, according to the said affidavit of tlie person who served the notice upon Gregorio Dimas, and as on the other hand the final judgment was rendered on June 29, 1908, and the appeal was taken on July 8 of the same year, it must be agreed that the appeal was taken within the period of one month prescribed by section 299 of the Code of Civil Procedure, from which it appears that this Supreme Court had jurisdiction in this case.

These are the important points alleged in the motion which, if true, would necessitate the dismissal of the appeal.

The motion filed by Petronila Patricia Ríos de Noya and José Toro Rios on March 26,1909,'to dismiss the appeal taken by Maria Rios, the widow of Rubio, is hereby overruled, and the appeal shall follow the ordinary course.

Motion overruled.

Chief Justice Hernández and Justices Wolf and del Toro concurred.

Mr. Justice MacLeary dissented.

Mr. Justice Figueras took no part in the decision of this motion.  