
    Luis Fontanez, Plaintiff and Appellant, v. Heirs of Juan Buxó-Ocasio, Defendant and Appellee.
    No. 3748.
    Argued November 2, 1925.
    Decided November 3, 1925.
    Notice oe Appeal — Service—Button.—When notice of appeal is served by mail and the return of service does not state that the postage was prepaid the appeal will be dismissed for lack of jurisdiction.
    Motion for dismissal by the appellee.
    
      Sustained.
    
    
      Bolívar Pagan for the appellant. Gonzales Fagundo & Gonzalez, Jr., for the appellee.
   Me. Justice Aldeey

delivered the opinion of the court.

The notice of the appeal in this case was served by mail on the attorney for the appellee, according to an affidavit accompanying the notice; but it is moved that the appeal be dismissed for the reason that the affidavit does not state that the necessary postage thereon was prepaid when it was deposited in the postoffice. That motion is opposed by the appellant who alleges that he has complied with the statute inasmuch as the affidavit states that the envelope containing the notice of appeal was deposited in the post-office, from which it must be presumed that the appellant complied with the law and therefore that the postage was affixed to the envelope.

Section 322 of the Code of Civil Procedure provides that “in'Case of service by mail, the notice or other paper must be deposited in the postoffice, addressed to the person on whom it is to be served, at his office or place of residence, and the postage paid.” Consequently, it is not enough to state in the affidavit that the notice or document was deposited in the postoffice, as alleged by the appellant, but it should state that the postage was prepaid, for the law expressly says “and the postage paid.” In view of this statutory requirement the presumptions invoked can not be indulged. The case of Roig Commercial Bank v. Succession of Lugo-Viña, ante, page 148, wherein the appeal was dismissed for this reason, is applicable and therefore this appeal should be dismissed.

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