
    García v. The American Railroad Company of Porto Rico.
    Appeal from the District Court of Mayagiiez.
    Motion to dismiss appeal.
    No. 734.
    Decided October 10, 1911.
    Dismissal of Appeal — Piling Transcript of Record Out of Time. — In the ease at bar appellee moved for the dismissal of the appeal on the ground that the transcript of the record was filed after the expiration of the 30 days allowed by law. Held: That the appellant having been served with notice of the motion to dismiss the appeal after the transcript was already on file in the office of the secretary the appeal will not be dismissed, in accordance with rule 58 of this court, which provides that if the tran- ■ é script of the record, though not filed within the time prescribed, be on file in the secretary’s office at the time such notice is given, that fact shall be sufficient answer to the motion.
    Id, — Delivery of Literal Copy of Transcript of Record to Appellee — Legal Normality not Affecting .Jurisdiction. — The appellee moved for the dismissal of this appeal on the ground that he had not been served with a literal copy of the transcript' of the record, and that the records do not contain a certificate of the'.service. Held: That under the last paragraph ■of section 299 of the Oode of. Civil Procedure, as amended by Act No. 70 of March 9, 1911, it appears that the certificate of the ’ service upon' the appellee of a literal copy of the transcript of the record is not an essential and integral part of the- transcript, but a mere legal formality which does, not affect the jurisdiction of this court and the omission of which may be remedied in time, as it was’ in the case at bar; and therefore the dismissal of the appeal on this ground is not proper.
    The facts are stated in the decision.
    
      Mr. José Benei for "petitioner.
    
      ■ Messrs. N. B. K. Pettingill and Fernando Vázquez for adverse party.
   DECISION".

The plaintiff and appellee, Dolores Garcia Nazario, on August 14 last, filed a motion for the dismissal of an appeal taken by tbe defendant, Tbe American Railroad Company of Porto Rico, from tbe judgment rendered in tbis suit, and as grounds tberefor alleged tbe following: First. Tbat tbe appellant bas allowed tbe legal, term granted for filing tbe transcript of tbe record to expire; and, second, tbat tbe ap-pellee bas not been served witb a copy of tbe transcript of tbe record, wbicb service should appear by means of tbe certificate referred to in tbe last paragraph of section 299 of tbe Code of Civil Procedure, as amended by Act No. 70 of March 9 of tbe present year.

It appears tbat tbe judgment of tbe court below was rendered and entered on December 21, 1910, and tbat tbe appeal and notice thereof to tbe adverse party was filed on tbe 30th of tbe same month. Tbe statement of tbe case was approved on May 3 of tbe present year and tbe transcript of tbe record was filed in tbe office of tbe secretary of tbis court on August 4 last, but witb nothing to show tbat service of a literal copy 'thereof bad been made upon tbe appellee. ■

Tbe last paragraph of section 299 of tbe Code, of Civil Procedure, as amended, reads:

“The record of an appeal shall be constituted by the certificate to be issued by the secretary of the court a quo or by the attorneys of the parties, of the judgment roll and of the notification of the appeal. Said certificate shall be filed in the office of the secretary of the Supreme Court within the next thirty days following that on which the bill of exceptions and summary of the ease was (sic) approved with a declaration that a literal copy of the same, certified to by the counsel for the appellant, has been delivered to the counsel for the appellees.”

A copy of tbe transcript of tbe record was delivered to counsel for the appellee on September 7 after the motion and the transcript of the record had been filed in the office of the secretary and prior to the second of the present month, upon ■which date the motion was heard.

Upon examination of the legal provision above transcribed, we are of the opinion that the certificate of the delivery of the transcript of the record to the appellee is not an essential and integral part of the record, inasmuch as according to the wording of said legal provision the record of an appeal shall consist of the certificate to be issued by the secretary of the trial court, of the judgment roll, and of the notification of the appeal. The showing that counsel for the appellee had been served with a literal copy of the transcript of the record is a legal formality which does not affect the jurisdiction of this court, and its omission may be remedied in time to avoid its being prejudicial to the rights of the ap-pellee who in this case has suffered no injury inasmuch as she received a copy of the transcript of the record on September 7 last, when this court was in vacation, and therefore had sufficient time in .which to prepare her case.

Briefly, we are of the opinion that as the appellee was notified of the motion in question on August 11, 1911, when the record had already been filed in the secretary’s office since the eighth of the same month, we may apply rule 58 of this court which provides that if the transcript of the record,, though not filed within the time prescribed, be on file at the time such notice is given, that fact shall be a sufficient answer to the motion; and as, on the other hand, the certificate of the delivery of a copy of the record to the appellee is not an essential element of the record, and the omission of such certificate has been remedied without prejudice to the ap-pellee, the motion cannot be sustained on the second of the grounds alleged.

For the foregoing reasons the motion of the appellee is overruled and the appeal sustained.

Motion overruled.

Chief Justice Hernández and Justices MacLeary, Wolf, del Toro, and Aldrey concurred.  